In April 2015, Environmental Health officers working on behalf of Portsmouth City Council banned Portsmouth restaurant 6oz Burgers from selling burgers which were pink at their centres.
At the time, Portsmouth City Council placed an emergency hygiene notice on 6oz Burgers because the business did not have a proper system to ensure the undercooked burgers were safe.
6oz Burgers stopped selling pink burgers and the council withdrew the notice, but the business decided to challenge the basis of the notice in court, commenting that they were “bitterly disappointed with the way Portsmouth Council and the Environmental Health officers had dealt with the issuing of the notice in a draconian manner.”
James Baldry, co-owner of 6oz Burgers, said: “We challenged the enforcement notice as we were, and still are, 100% confident in the safety of all of our products, which was verified by Dr. Dinsdale and the detailed report he produced.
“We felt that the issuing of this notice was a draconian measure that was unnecessary and we wanted to prove that in court.”
A report produced by Dr. Dinsdale for 6oz Burgers was issued to the court in a recent hearing in relation to the emergency hygiene notice. The detailed report contained expert information which confirmed that the pink burgers in question were of the highest quality, and posed no risk to the public.
However, the magistrate’s court sided with the council’s argument about inadequate documentation being in place, and chose not to take Dr. Dinsdale’s conclusions into account when making a final decision.
Within the report, Dr. Dinsdale — who has over 30 years of experience in the food hygiene field — noted that 6oz Burgers were using the ‘highest quality’ of beef available in their production in conjunction with Q Guild butcher Buckwells of Southsea. He went on to write that ‘producing mince from whole primal cuts, aged initially in the carcase and then in a vacuum pack, provides for the highest microbiological safety and quality’.
Traditionally, minced beef is prepared from trimmings of the cheaper cuts of beef, particularly those from the flank and neck area, which are likely to contain more bacteria on their increased surface than are found on other parts of the carcase.
In the report, Dr. Dinsdale also echoed the concerns of the proprietors by confirming via investigation that it was clear that ‘Mr. Larkin served the HEPN (Hygiene Emergency Prohibition Notice) before visiting Buckwells, before considering the procedures in place for mince production, and before agreeing with Mr. Buckwell that, in effect, meat could be consumed undercooked if it was produced under appropriate conditions.’
He went on to say: ‘on this basis alone, it is difficult to see how an assessment of risk, imminent or not, could have been made by the officers at the time of the service of the HEPN’.
It was also confirmed via the report, and investigation from both parties, that at no point had there been any report of illness sustained from food served at 6oz Burgers.
In connection to this point, co-owner James said: “We would like to make it clear that at no time has a pink burger from 6oz made anyone ill, and that we served over 16,000 of them before the notice was given to us!
“Furthermore, we received a 4 out of 5 hygiene rating from the council whilst we were serving pink burgers.”
Although considered, District Judge Anthony Callaway, who resided over the case, dismissed the findings of the detailed report by Dr. Dinsdale and ruled that the council was justified in imposing the ban because the pink burgers presented an imminent health risk.
Richard Lee, the council’s environmental health manager, said: “The council’s job is to protect public health. In doing this, we follow the guidance of the national Food Standards Agency.
“A crucial difference between a rare steak and a rare burger is that if the surface of a steak is contaminated by bacteria, they stay on the surface and are killed by proper cooking. In a burger the meat is minced, so the surface part of the meat is mixed in with the rest.
“The FSA’s advice to the public is that they should cook burgers until none of the meat is pink. The FSA’s advice to councils is that they should take action against businesses serving undercooked meat, to protect public health — unless a proper method is used to make it safe.
“The heart of this case was the absence of a proper method, which the council believed put the public at imminent risk. This is why we issued an emergency notice, banning the sale of undercooked burgers.”
Steve Wearne, director of policy at the Food Standards Agency, said: “The FSA welcomes this result for Portsmouth City Council and we are pleased that the judge has recognised that the local authority was doing no more than fulfilling its duty.
“Our long-standing advice is that burgers should be cooked thoroughly to kill any bugs that may be present. If you’re cooking burgers at home this should always be the case. However, if a business wants to serve burgers which are less than thoroughly cooked, then there must be appropriate controls in place to ensure consumers are protected.
“In this case, environmental health officers were not satisfied these controls were in place. We support local authorities in taking action in circumstances where businesses cannot demonstrate that they have adequate controls and where they do not meet legal food safety requirements.”
A statement released by Portsmouth City Council concluded by saying the restaurant is free to continue to serve pink burgers. However, if the council inspects the restaurant, the business will need to demonstrate it has a proper method in place to ensure safety.
Dr. Dinsale brought his report to a close by saying: ‘it follows from my analysis above that there was not an imminent risk to health, either at the time or sometime later, and the service of an HEPN was not appropriate’.
6oz Burgers posted to their Facebook: “We are deeply disappointed with the outcome of the court case and are considering our options in terms of filing an appeal.
“We will be producing a new HACCP for the council specifically for pink burgers in the hope that it satisfies their criteria to do so. The serving of pink burgers is our main priority going forward and we will do whatever it takes for this to happen sooner rather than later.”
The council is seeking to recover its court costs, thought to be in the region of £25,000.