Why we're taking legal action with other cheesemakers

By Wilma Finlay

This is a blog post I hoped never to have need to write, but following this morning's launch of a Crowdjustice campaign by five Scottish cheesemakers, including us, I wanted to explain the background to this situation.

There are only seven cheesemakers left in Scotland who make unpasteurised cheese.  The Ethical Dairy is the new kid on the block, having only been making unpasteurised cheese for four years. Prior to that we spent two years making pasteurised cheese as we experimented and learnt our trade.

You may well be wondering why we decided to change from making pasteurised cheese to unpasteurised.  There are lots of reasons, not least other cheesemakers and our customers – the general public and chefs – encouraging us to do so.  But our decision ultimately came down to what was the best fit with our values. 

When we are putting so much thought and care into designing a new system of dairy farming we want the precious milk we produce to be used to make the most delicious and most nutritious cheese possible.

Unpasteurised cheese has a lot more character and taste, but most importantly, pasteurisation doesn’t just kill off the bad bacteria it kills off the good guys too.  More and more we are recognising that our bodies need that good bacteria.  We are only just beginning to understand the importance of gut health and unpasteurised cheese is great for your gut biome. By producing unpasteurised cheese we are making that good bacteria accessible as well as creating cheese that tastes really good too.

Background

The first 18 months of making unpasteurised cheese were relatively event-free for us.  We maintained good relationships with our Environmental Health Officers whose jobs have always appeared to be to assist as much as to enforce. That all changed after the E. Coli O157:H7 case in Scotland in July 2016.  Errington Cheese was blamed, even though E. Coli O157:H7 was never found in their cheese and a court case last year found that all their controls were safe. 

I have visited lots of cheesemakers in the last 6 years. I first visited Errington Cheese in early 2016 and would have placed them at the ‘champion’ end of cheesemakers – passionate, informed, strict and generous with their time for novices like me.  I also distinctly remember Selina commenting on the good relationship she had with her Environmental Health Officers.

How can someone at the top of their game suddenly become vilified?  Of course none of us are infallible and we all make mistakes, but over the past two years the insinuations from some organisations and from certain sections of the media that the Errington family are rogues have greatly concerned us.

Our journey as unpasteurised cheesemakers has been interesting and much more complex than we ever imagined.  Instead of the no mean task of simply learning how to be cheesemakers, all of a sudden we have had to become microbiologists and scientists. We have needed to learn to understand detailed scientific evidence into research on the physiochemical characteristics of cheese.  Understanding 100+ pages of heavy scientific documents has become a pre-requisite to making unpasteurised cheese in Scotland. 

The Current Situation

So here we are 2.5 years after the tragic E. Coli O157:H7 outbreak and the attitude towards unpasteurised cheese in Scotland is markedly different from when we first made our decision to produce cheese from raw milk.  Now the authorities appear to want to add a Catch-22 style of testing regime to all unpasteurised cheesemakers in Scotland which would effectively stop unpasteurised cheese being made in this nation that is increasingly famed for its food.  This worries us deeply.

The guidance being introduced now would certainly prevent any new business starting to make unpasteurised cheese.  So even if the seven existing business somehow manage to carry on, there would be no-one following in our footsteps. We are at risk of losing the craft of traditional cheesemaking from Scotland entirely.

The new guidelines that are causing such concern by cheesemakers were introduced on 21st December 2018.  We have a 3 month window of opportunity to challenge this guidance, and that window closes on 21st March 2019; less than a month away.

There have been many attempts by the businesses involved, ourselves included, to work with the organisation responsible for writing these guidelines to amend them so that very high standards of production are enforceable, but within a framework that is practically workable. So far they have declined to alter the guidance. This guidance is now live and is what businesses will be assessed against by local environmental health officers.  Our systems are assessed next month. This new guidance has very worrying implications for the way we make cheese.

Managing Risk

I’ll try to explain why the guidance is unworkable.  In layman’s terms E.Coli O157:H7 is part of the STEC family (Shiga Toxin E Coli).  This ‘family’ is pretty much a dysfunctional family.  There are various groups of unconnected bacteria in the STEC family.  Some of the bacteria are perfectly harmless, but some like E.Coli O157:H7 are dangerously pathogenic.  To add to the complexity, there are some bacteria which are members of the STEC family that we don’t even know about yet.

The new guidelines that we want to challenge say that we must have a system in place that eliminates all STEC.  However, apart from E-Coli O157:H7, there are no laboratories in the UK that can test for and identify all individual STEC bacteria.  There’s the Catch 22 - we need to eliminate all STEC but we can’t even test for them to know if we’ve got them!

Normally guidelines are risk based. The EU guidelines recognise that it is unrealistic to insist on testing for all STEC.  EU law identifies 4 microbiology tests bacteria that we all must do.  In addition to those mandatory tests, we also test for E-Coli O157:H7. 

We can test for E-Coli O157:H7 and we do all test for it.  So we simply don’t understand why we are now being asked to introduce a testing regime that is unnecessary and in all practicality actually impossible to deliver.

I write this blog with the full understanding of how important food safety is. Before we made the decision to proceed with unpasteurised cheese production we thought very carefully about the risk.  There have been 8 cases of outbreaks of foodborne illness (caused by any type of bacteria) in the UK that have been ‘associated with’ unpasteurised cheese in the past 35 years.  I have emphasised ‘associated with’ because that includes the cases where pathogens were never found in the cheese, and where cross contamination was more likely the cause.  Raw meat and salad leaves have a much greater incidence of E. Coli O157:H7 than unpasteurised cheese.  For E. Coli O157:H7 itself, there have been no cases of illness caused by unpasteurised cheese this century.

In addition there has been research done in France that shows that even E. Coli O157:H7 dies off after 210 days ripening in a hard cheese. This is one of the reasons why we mature our cheese for so long, and why we use pasteurised milk for our semi-soft cheese, Bluebell. That long, traditional maturation is another step in managing food safety and is an important part of our artisan cheese making heritage.  If any of us cheesemakers ever found E. Coli O157:H7 at any stage of the process, we would be absolutely horrified and would without question destroy the entire batch of cheese and undertake major corrective action on our farms and in our dairies.

Legal Action

We have thought long and hard about whether to join with our fellow Scottish cheesemakers in taking legal action to seek a judicial review of these guidelines. The last thing any business wants to do is to enter into legal proceedings, however it is our view that the legality of these new guidelines needs to be challenged.  We would much rather this situation was resolved amicably with meaningful collaboration between the cheesemakers and those who write the guidelines. 

If you would like to know more about this situation there is a summary of the case on the crowdjustice platform, which is a crowdfunder specifically for legal action: https://www.crowdjustice.com/case/save-farmhouse-cheese-producti/