Crowdfunded cheesemaker campaign 'wins challenge against Food Standards Scotland'

The FSS has recently revised its guidance of raw cheese production guidelines in Scotland: but counters that claims of a ‘victory’ by cheesemakers are exaggerated as guidance was already under review.

The FSS and the Scottish Food Enforcement Liaison Committee (SFELC) has since published new guidance, in line with World Health Organisation and EU recommendations.

The FSS said revisions were agreed following constructive discussions between the SFELC and representatives of the raw milk cheese sector, including the Specialist Cheesemakers Association and Fine Cheesemakers of Scotland.

The producers said they are delighted with the outcome of the ruling and said the guidance has now ‘undergone significant changes which secures the future of raw milk cheese production in Scotland.’

The five businesses, Errington Cheese, Isle of Mull Cheese, Galloway Farmhouse Cheese, Cambus O’May Cheese Co. and Finlay's Farm Ltd, launched a Crowdjustice campaign in February and exceeded the initial £15,000 ($19,000) funds for legal fees allowing for the preparation and submission of a potential judicial review.

They believed the FSS guidance was contrary to agreed EU industry guidance and established best practice; concerned that it would make ‘raw cheese production in Scotland unviable’.

Initially requesting a suspension of the guidance to enable changes to be considered, the group sought legal support and lodged a petition to overhaul the new protocols.

In addition to the successfully amended guidelines, FSS abandoned its motion to seek expenses from the cheesemakers.

FSS position​

However, an FSS spokesperson told DairyReporter the legal challenge to guidance for raw milk cheesemaking was dropped on May 16, 2019, by the five cheesemakers who brought it, therefore "the claim of a success against Food Standards Scotland (FSS) is inaccurate."

The FSS said, "To avoid any misunderstanding, revisions to the guidance were agreed following constructive discussions at a meeting on March 6, 2019 between FSS, the Scottish Food Enforcement Liaison Committee and representatives of the raw milk cheese sector, including the Specialist Cheesemakers Association and Fine Cheesemakers of Scotland, and not through the legal challenge. ​

"It had been made clear at this meeting that the guidance was always intended to be reviewed, and at no stage was it in breach of EU law. Therefore it was entirely unnecessary for this legal challenge to be made​ after this meeting. Further, the comment that changes were agreed only as a result of the legal challenge is simply inaccurate.​ Contrary to the statement made by the cheese producers, the amendments made to the guidance were not substantive, and the description of changes presented by the producers is inaccurate and misleading so it is not worth commenting further on their summary. ​

"The revisions, which would have been made regardless of this legal challenge, serve to​ provide additional clarity in relation to sampling and testing, and the actions that would be taken when tests show a potential food safety risk."​

FSS said it was always made clear that the guidance was a working document and would continue to be reviewed based on the experience of local authorities and feedback from food businesses. It was intended to finalize the document in December 2019 when this had been reviewed, and the FSS said the guidance was always clear that it placed no specific requirements on cheese producers, and was intended to provide examples of the types of evidence that were required to demonstrate that they were compliant with legal food safety requirements.

Errington comments

Selina Cairns, director at Errington Cheese, said, “I want to say a huge thanks to those who have supported us over the past few months. This has been a stressful period everyone and we really couldn’t have done it without the public support. It’s a massive relief.​

“We don’t believe that Food Standards Scotland would have made any changes to the document had we not gone ahead with the judicial review – only made possible by the support given to the crowdfunding campaign. ​

“We’re extremely hopeful that this is the last chapter of what has been an incredibly hard couple of years, with actions from Food Standards Scotland having detrimental impacts on our business and sales growth. Now that we have fair and achievable guidelines in place, we look forward to getting back on track with production and sales, with the hope that we can begin to rebuild our local workforce.”​

New guidance

The first changes relate to the requirements to test for STEC (Shiga toxin-producing E. coli​). The new guidance states that full validation of hygiene controls for STEC is not possible. Similarly, it is now recognized that the requirement for elimination is not realistic and this has been replaced with a requirement that it “not be present in the end product;” minimizing the risk is now acceptable.

The second changes are in relation to the assumption that all STECs are pathogenic. The new guidance now implicitly recognizes there is a need for a risk assessment following the detection of STEC of unknown pathogenicity.

The third changes are in relation to the micro-limits. The generic E. coli​ limits from the first version are now changed to targets in the new guidance. The ACC limits have been raised to comply with EU limits. The need for a risk-based approach is now much more clearly set out in the new guidance.

The new guidance stresses the importance of testing for generic E. coli​ is in relation to the verification of hygiene controls at the milking stage and the effective control of fecal contamination. 

The new guidance now states that the Guidance will continue to be updated ... following any further feedback received from enforcement officers and businesses”. This was not contained in the original guidance.

The new guidance refers to E. coli​ O157 as an STEC. The new guidance describes O157 as a proxy for STECs, and the petitioners said this is implicit acceptance that principal testing in Scotland is for O157:H7.

The new guidance accepts business operators “would not be expected to include all of the criteria listed in Annex 2, but should choose the most appropriate sampling points for their verification tests.” It also departs from the original guidance by not requiring the testing of every batch of raw milk. The requirement to inform the local authority has been altered so that business operators are reminded of their obligations under the current legal position.

Legal issues

Errington Cheese Ltd has been in a protracted legal battle with FSS and South Lanarkshire Council over the past two-and-a-half years.

The cheese was banned from sale in September, 2016​​, after an E. coli​ O157 outbreak that sickened 26 people and was linked to the death of a three-year-old child.  Errington Cheese said at the time its cheese was safe and there was no link between its products and the outbreak.

In September 2018 Errington Cheese Ltd was cleared of breaching food safety regulations, awarded legal expenses and its cheese was released with the exception of one batch of Lanark Blue and three batches of Corra Linn which were condemned, not because there was any evidence that they would cause harm but, on the basis of a draft policy document produced by FSS/FSA.