Five Scottish cheesemakers have successfully challenged the legality of Food Standards Scotland ­inspection and enforcement guidance for the production of raw milk cheese.

As a result of the crowdfunded action, the FSS and the Scottish Food Enforcement Liaison ­Committee (SFELC) has published new ­guidance, in line with World Health Organisation and EU recommendations – leading to the ­advocate ­representing the cheesemakers to drop the action as a full judicial review was no longer required.

• READ MORE: Cheese recall sparks claim of FSS ‘crusade’

Delighted with the outcome of the ruling, the producers said that these significant changes to the guidance will “secure 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 receiving more than the initial £15,000 needed in funds for legal fees. This allowed for the preparation and submission of a potential judicial review.

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

• READ MORE: Cheesemakers pull together to launch crowdfunding campaign to raise cash for legal fees

Initially requesting a suspension of the guidance to enable changes to be considered, the group sought legal support and lodged a petition.
Food Standards Scotland also abandoned its motion to seek expenses from the cheesemakers.

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 for ­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.

“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.

“We look forward to getting back on track with production and sales, with the hope that we can begin to rebuild our local workforce.”

Legal action between Errington Cheese Ltd and Food Standards Scotland/ South Lanarkshire Council over the past 2.5 years

November 2016 – Petition for Judicial Review of the issue by FSS of a Food Alert for Action which ordered environmental health officers to destroy the cheese, rather than applying to a Sheriff Court to have it condemned.

January 2017 – Petition to the Court of Session for Judicial Review of unlawful detention notices issued by South Lanarkshire Council.

February 2017 – interdict granted in the Court of Session against South Lanarkshire Council to prevent them removing the 2016 Corra Linn and, in effect, destroying it.

February 2017 – Section 1 Petition to the Court of Session against NHS and HPS to recover from HPA and NHS evidence from NHS and HPa in connection with the 2016 outbreak of E.coli illness.

January 2018 – Defence of 3 Summary Applications in Hamilton Sheriff Court in connection with all the sheep’s cheese (Lanark Blue and Corra Linn), made in 2016, which South Lanarkshire Council claimed had not been produced in accordance with the hygiene regulations.

In September 2018 Errington Cheese Ltd was cleared of breaching Food Safety regulations by Sheriff Weir, awarded legal expenses and the cheese was released with the exception of one batch of Lanark Blue and 3 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. The Court case lasted four and a half weeks with five lawyers present on behalf of the authorities and two family directors, unable to afford lawyers, acting alone in defence of Errington Cheese.

September 2018 – Following the Sheriff’s judgement, South Lanarkshire Council dropped the two outstanding summary applications against Dunsyre Blue and agreed to pay compensation for the value of the cheese that had over-ripened and was no longer marketable.

September 2018 – Petition to the Court of Session for Judicial Review (ongoing) of Food Standards Scotland’s refusal to remove defamatory risk assessments and FAFA published on their website which in effect prevented Errington Cheese selling the Corra Linn declared safe to eat by the Sheriff.

November 2018 – following Petition to the Court of Session for Judicial Review of the Sheriff’s decision to condemn four batches the decision was found by the court to be unlawful and irrational. This decision is of great importance for all artisan food producers.

About The Author

Sean Murphy

Driven by a passion for all things drinks-related, Sean writes for The Scotsman extensively on the subject. He can also sometimes be found behind the bar at the world famous Potstill bar in Glasgow where he continues to enhance his whisky knowledge built up over 10 years advising customers from all over the world on the wonders of our national drink. Recently, his first book was published. Dubbed Gin Galore, it explores Scotland's best gins and the stories behind those that make them.

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