The future of the artisan hand-dived scallop industry hangs in the balance as reinforced EU regulations threaten the livelihoods of its producers. Emily Manson investigates
After nearly quarter of a century, the controversy surrounding the testing of hand-dived scallops is raging once more, as the reinforced regulations have put the artisan industry on the brink of destruction.
Suppliers are at risk of going out of business because of "overbearing EU rules" preventing them from selling their scallops whole, still alive in the shell. They are calling for a review of the regulations to protect their livelihoods. Meanwhile others insist the internationally recognised testing levels are already the result of extensive negotiation, and are proportionate and essential to ensure that scallops are safe for public consumption.
Where it all began
In 1987 a group of people contracted Amnesic Shellfish Poisoning (ASP) in Canada from mussels contaminated with domoic acid. This outbreak prompted the European Commission (EC) to set toxicity testing limits for ASP into law in 1997. The same limit was adopted in new EU legislation that applied from 2006. These set acceptable levels of ASP toxins allowed in all bivalvia - such as oysters, mussels and scallops - at a blanket rate of 20mg/kg.
Additionally, in 2002 the EC later allowed scallops with a domoic acid concentration over 20mg/kg but lower than 250mg/kg in the whole body to be harvested under specific conditions. Controversially though, those conditions applied to the whole scallop, including the guts, even though these parts are discarded - compared with oysters and mussels, which are eaten whole. This testing process means it's nearly impossible for hand-dived scallops to pass the tests without being shucked. Only scallops that have a whole rate - including guts - of less than 20mg/kg can be sold in their shell. Those that have levels between 20mg/kg and 250mg/kg still need to be shucked by the producer before being sold.
And here lies the rub: the fact that hand-dived scallops have to be shucked to pass the health and safety checks is destroying the industry. The market has been opened up to easy fraud, as it's hard to prove a scallop's provenance once removed from its shell.
Consequently top chefs no longer have the security of knowing that they are paying a premium price for a premium product and are reducing their orders or stopping altogether. Tim Bouget, owner of Devon-based restaurant Ode, says: "We are prepared to pay a premium for hand-dived scallops but for a while we have not been able to secure a reliable source. We want our scallops in shell - alive. It is impossible to tell the difference unless they are alive and in shell - tubs of scallop meat can come from a generic market or supplier."
In addition, the depreciation in its value makes the hand-diving industry financially unviable. Mark Linehan, managing director of the Sustainable Restaurant Association, explains: "Hand-dived scallops are a sustainable premium product, cherished by restaurants. But some chefs are no longer serving scallops at all as the freshness has been compromised and it has become almost impossible to distinguish between dive-caught and dredged, as the scallops have to be shucked prior to sale and are no longer live."
What's the argument?
Many chefs may be unaware of the existence of these regulations as the Food Standards Agency (FSA) has so far taken a relaxed approach to their enforcement. Even so, they are slowly having a disastrous effect on the hand-diving industry: a few years ago there were 13 hand-diving businesses on the Isle of Mull; now there are only two. Local fishermen claim their livelihoods have been destroyed from the fallout of this legislation.
Linehan argues: "We believe the EC is guilty of using a mighty hammer to smash a fragile shell, causing huge damage to an artisan industry while also denying diners the chance to enjoy delicious sustainable seafood."
Guy Grieves, owner of the Ethical Shellfish Company, has been a leading critic of the EC legislation. He says: "This was a clumsy bit of EU law making that is having a hugely negative effect on a niche but sustainable industry. It was a great mistake to lump all molluscs in together. Scallops can't be placed in the same bracket as oysters and mussels as they are not eaten whole."
Fellow hand-dive fisherman Alasdair Hughson, director at Keltic Seafare, agrees the situation is dire. "The crux is if we shuck the meat out and send it for testing it always comes in under the levels and it's only the meat the chefs want, so it's crazy to have to test the whole thing," he says.
"It's such an iconic product - chefs want it but divers need a decent living wage. You can get around £1.80 for a decent live scallop, but shucked the price is half or less, so it's just not sustainable."
The group are leading calls for the Scottish Cabinet Secretary for Rural Affairs and the Environment, Richard Lochhead, to take on Europe and get the testing requirements relating to whole, live, hand-dived scallops changed before the industry is destroyed.
Hughson adds that he would like to see legislation changed to test the end product to ensure it comes in below the levels and then be allowed to sell the product whole to chefs who agree not to use the viscera.
He fears that unless suppliers like him get enough customers who will go on trust alone then the industry will wither away. "No one at the top seems very interested as it's a small industry, but the bottom line is it's about whether the FSA trusts chefs," he says.
Andrew Fairlie, chef-patron of his eponymous restaurant at Gleneagles hotel in Auchterarder, Perthshire, agrees: "Blanket testing for all molluscs is nuts. You just can't test scallops in the same way as you do oysters and mussels. Initially some people didn't realise the full ramifications of the legislation but now the Government has been made aware of the problems they need to set up a review, as the current position is ridiculous."
But it's not that simple and the Scallop Association, which represents 80% of the catching, processing and gear manufacturing sectors of the UK scallop industry defends the main thrust of the legislation. CEO John Hermse says the association spent many years in the early 2000s, negotiating to get a "robust but acceptable system" in place which would allow the sector to work, and that could be agreed by the EU and FSA.
He adds: "We were very careful to work within the European framework. Every food sector must have a system to ensure the product is inherently safe and toxins like ASP can't get into the food supply, as that kind of scare can destroy the whole sector. There are special levels for testing scallops but some hand-divers don't abide by any health and safety testing regulations at all. The bottom line is no one can be above the law.
"When you look at the way the FSA is dealing with this it's clear they are using a fair bit of pragmatic interpretation. If pushed too far, they might just pull the whole plug and revert to unworkable initial interpretations."
Hermse also disputes the sustainability of hand-diving. He says that dredgers are nomadic and only fish an area until it becomes financially unviable - leaving brood stock to restock the grounds.
"A good north westerly gale can cause more damage to the sea bed than fishing this way. Meanwhile some hand-divers strip areas bare, making it hard for the scallops to reproduce in that area again," he adds.
"If hand-diving was on the scale of dredging it would be just as environmentally damaging. But this new environmental fascism that is fanned by the media makes environmental terrorists out of a lot of good hard working people and their livelihoods."
The outlook from Brussels is bleak; a spokesperson for Health and Consumer Policy at the EC insists that the limits, backed up by European Food Safety Authority (EFSA) opinion (published in 2009), and complete with a separate level designed specially for scallops - that of 250mg/kg - are adequate. It sees no issues with the fact that the upper limit comes with the caveat that they need to be shucked.
Despite the FSA, Scallop Association and other UK industry bodies also disputing this extra limit, the EC spokesperson insists that no review would be forthcoming: "The EU limits for domoic acid are internationally accepted and substantially confirmed by EFSA. Moreover the current legislation allowing the harvesting of scallops with a limit of domoic acid higher than the limit foreseen in the EU already covers the concerns of the sector."
But Juliet Grieves, co-owner of the Ethical Shellfish Company, argues the additional limit doesn't change the position. "The fact is we aren't allowed to take whole shell scallops into the kitchen unless they are under 20mg/kg - which is very rare," she says.
"These rules are draconian as they require us, rather than the chefs, to prepare the scallops, which the chefs do to other products. It could be so easy for them to say that under the 250mg/kg limit scallops can be sold as a whole shell and prepared like anything else."
But closer to home, it appears people are at least listening to the concerns of the hand-divers. In January, the Scottish Government raised the issue with the FSA, the Rural Affairs and Environment Secretary and extracted assurances that the FSA would meet with industry to address this issue further.
A spokesman for Lochhead explains that the health standards for scallops are EU wide and he wouldn't want to see any changes that could disadvantage the industry or restrict international markets for Scottish products. However, he adds: "We would like the FSA to explore any options that will ensure public health controls remain robust but are proportionate and consistently applied."
While stressing that consumer safety is also its primary concern, a spokesman for the FSA admits that following discussions with industry it was "aware of the concerns" and, "intends to explore how best to ensure robust and proportionate public health controls continue to be applied to this sector".
But he adds: "Given that scallops from the UK are exported all over Europe then any change to current controls would need to be agreed at an EU level."
Not put off by the battle ahead, Grieves wants the Scottish government to keep the pressure on: "It's Richard Lochhead's duty to protect the fishermen, gatherers and hunters who often put their lives on the line to source these top internationally recognised ingredients."
Scallop stats and toxicity testing
â- In 2002, EU rules were introduced allowing scallops with a domoic acid concentration over 20mg/kg but lower than 250mg/kg in the whole body
â- The EU Hygiene Package covering marine biotoxins such as ASP, paralytic shellfish poisoning (PSP) and diarrhetic shellfish poisoning (DSP) became EU law in 2006, but the limits had been in force since 1991
â- Domoic Acid is a marine biotoxin causing shellfish poisoning in humans
â- Symptoms of ASP poisoning can be gastrointestinal such as vomiting and diarrhoea as well as neurological including memory loss, seizures and coma
â- The king scallop industry has grown year on year and reached £54.5m in 2010
â- Over 95% of these scallops are caught with dredges with hand diving making up the remaining 5%