A cautionary tale

At first sight, there would appear to be nothing in common with the story in today’s Sunday Telegraph, headed, "EU hygiene regulations threaten traditional French cheeses", and last week's London bombing. However, there are serious and important parallels, from which we can learn a great deal.

Turning to the SunTel story first, this reports how a picturesque French alpine farm, in the village of Abondance, tucked into a valley close to the Swiss border, is having problems with EU hygiene regulations.

The farm, a family enterprise run by 73-year-old Céline Gagneux, creates speciality Vacherin d'Abondance cheese using milk from a small herd of cows, a breed developed by monks in the Middle Ages. For as long as anyone can remember, the women of the Gagneux family have produced the rounds of creamy cheese, wrapped in wood from local spruce trees. However, thanks to Brussels bureaucrats, the Sun Tel reports, Madam Gagneux will be the last.

The Association Fromages de Terroir, a group set up to protect the 1,000 different cheeses traditionally made in France, says that at least 50 varieties have disappeared in the past 30 years and many more are on their way out. Véronique Richez-Lerouge, the association's president, blames draconian EU regulations for strangling the production of cheeses made with unpasteurised milk. "Of course there have to be hygiene standards but you can't produce cheese in a laboratory," she says. "Brussels says this or that is dangerous and encourages bacteria and France trembles and introduces the rules. It's an enormous problem."

Richez-Lerouge is actually right, but it is interesting to note that, although this news report is dated July 2005, the actual Directive doing the damage is 92/46/EEC. It was therefore, as its number indicated, promulgated in 1992 - and it did not come into force until 1995. Thus, it has taken ten years for the law to do its damage to Madam Gagneux, demonstrating an all too-familiar phenomenon, the extremely slow pace of implementation. Years after it first came into force, the reasons for it have long been forgotten, yet it carries on having its malign effect.

What is also interesting is that the Directive was brought in on the back of a real problem, the emergence of a strain of bacteria known as Listeria monocytogenes (Lm) which, from the early 1980s through to the early 1990s, caused a number of serious outbreaks of illness and a few fatalities, as well as causing spontaneous abortion in a small number of women.

Such was the atmosphere of the time, however - with first salmonella and then BSE dominating the headlines - that Listeriosis (the technical name for the illness) escalated from a discrete, small scale problem to a major food scare in 1989. And, on the back of that scare came Directive 92/46/EEC, rushed in to address the problem, imposing a blanket ban on the presence of all Lm in milk, and milk products such as cheese.

That, on the face of it, seems a sensible response, except for two singular facts. Firstly, Lm is a commonly found in the environment and is thus virtually impossible to exclude it from milk (and many other foods).

Secondly, the name Listeria monocytogenes does not describe a single bacterium, but a whole family of bacteria, grouped in what are known as "serovars". The illness that appeared in the 1980s was, in fact, caused by one serovar (actually, a few strains within that group) classified as Serovar 4b. Virtually, it is only the strains within that group that are pathogenic and, with many of the others, there has never been any evidence of the organism causing illness.

This, I had cause to demonstrate myself in a famous case in 1994 involving Lanark Blue cheese, made by Humphrey Errington. That December, some £54,000-worth of his product had been seized by Clydesdale District Council environmental health officers (EHOs), who claimed that high counts of Lm made it unfit for human consumption.

However, the strains identified in Lanark Blue were not from Serovar 4b – which had been associated with the recent epidemics – but from the Serovar 3a group. This had never before been implicated in human - nor even animal - disease. Furthermore, over 63,000 people had been estimated to have eaten Lanark Blue "contaminated" with this bacterium and, despite the best efforts of what was claimed to be one of the most sophisticated infectious disease surveillance systems in the world, not one case of listeriosis had been linked to the cheese.

At the time, Directive 92/46/EEC was not in force and the Council had to use existing legislation in the Food Safety Act. In a series of hearings that took over nine months – including two High Court appearances – we demonstrated that Clydesdale EHOs had no evidence whatsoever that the cheese was harmful. The Lanark Sheriff eventually agreed and Errington was able to claim substantial compensation for what amounted to an unlawful seizure.

Had the Directive been in force, however, there would have been no case. Sale of any cheese in which Lm was present would have been an offence and the EHOs could have seized the cheese and destroyed it with impunity, without offering any compensation.

So, where are the serious and important parallels with the London bombing? If you had not already worked them out, they are these.

In the case of Listeriosis, that was – and still is a problem – but the 1989 hysteria escalated it into a full-blown scare. In the nature of scare, the problem is invariably genuine, but what defines it as a "scare" is the disproportionate response. And, in the latter stages of a scare usually comes the regulatory response which, in the nature of things, is long-lasting. Yet, all to often, it either fails to resolve the original problem, or does so much damage that the cure is worse than the disease.

In the case of the London bombing, terrorism is a serious and real problem. But "terrorism" is being escalated, like Listeriosis, into "scare" status. There is a very real risk, therefore, that the "regulatory response" will do more lasting damage (particularly to our civil liberties) than the original problem and, almost certainly, will fail to effect a cure.

Then, as was demonstrated by the Lanark Blue case, the existing law was a perfectly adequate tool to protect public health and there was actually no need for new laws. All that was needed was for the existing law to be properly enforced. With very few exceptions, our previous posting seems to illustrate precisely that.

However, the hysteria that accompanies a "scare" makes it very easy for legislators to rush in new – and very often bad - laws. On the back of the London bombing, that is an ever-present danger. But, in ten years time, when things are different, and the terrorism threat may have receded, any laws passed now might still be in place, still restricting our freedoms. Whatever the situation looks like today, therefore, we must not let last week's "incidents" – appalling though they were – legitimise another legislative orgy.