Child's death after raw cow's milk cheese
Did the producer act lawfully — and is that even enough?

Raw milk and raw milk cheeses are one of the few areas of EU food law where harmonisation is deliberately incomplete. Regulation (EC) No 853/2004 gives Member States an express power to maintain or introduce national prohibitions or restrictions concerning raw milk intended for human consumption. The result is a legal patchwork that a producer must understand before sending the first pallet across a border.

What EU law actually regulates — and what it does not

The central instrument is Regulation (EC) No 853/2004, Annex III, Section IX. It sets requirements for raw milk intended for processing: general bacterial-count limits, temperature requirements for storage and transport, and testing obligations. These are general hygiene parameters. The Regulation does not set detailed limits for pathogens such as STEC or Listeria in raw milk used as the starting material for cheese.

Finished-product microbiological criteria are governed by Commission Regulation (EC) No 2073/2005. For ready-to-eat cheeses capable of supporting Listeria growth, the food-safety criterion is absence in 25 g unless the producer demonstrates that the product does not support growth; in that case ≤100 cfu/g is permitted. From 1 July 2026, Regulation (EU) 2024/2895 applies the absence-in-25-g approach throughout the shelf life unless the producer has documented compliance with the 100 cfu/g limit.

For STEC in raw milk cheese there is no analogous universal food-safety criterion expressed as absence in a specified sample mass. Risk management relies primarily on process-hygiene criteria, the general principles of Regulation (EC) No 178/2002 and the risk assessment carried out by the competent authorities.

Expert tip: A raw milk cheese producer should validate the ripening process for Listeria growth. A finished-product test showing “absence” does not replace the validation documentation required by Annex II to Regulation 2073/2005. Missing documentation can itself trigger action by the supervisory authorities.

A patchwork of national rules: the same cheese, different legal risk

Article 10(8)(a) of Regulation 853/2004 allows Member States to maintain or introduce national rules prohibiting or restricting the marketing of raw milk or cream intended for direct human consumption. The provision does not directly regulate every raw-milk cheese, but national restrictions can materially affect products made from raw milk, particularly short-ripened products.

• United Kingdom: the sale of raw drinking milk is subject to specific registration and labelling rules. Following Brexit, the current national rules must be checked separately.
• France: raw milk and raw milk cheeses are traditionally permitted, while ANSES regularly highlights risks for vulnerable groups; there is no general nationwide ban.
• Germany: direct farm sales of raw milk (Vorzugsmilch) are possible subject to special hygiene, authorisation and refrigeration requirements.
• Poland: there is no general ban on raw milk, but the competent state sanitary inspector may order withdrawal where there is a direct threat to life or health.

For an exporting producer, the consequence is clear: a product lawfully placed on the Polish market may be stopped in another Member State applying stricter national rules based on Article 10(8) of Regulation 853/2004. That is an express exception within EU law, not a breach of free movement principles.

What liability follows a fatal incident?

The death of a consumer after consuming a food product activates three independent tracks of liability. Compliance certificates and inspections do not close the matter; they are only part of the evidence.

Under criminal law, Article 165 §3 of the Polish Penal Code provides imprisonment from 2 to 15 years where the relevant danger results in death. Criminal liability concerns the responsible natural person, such as the person responsible for food safety or a manager supervising production; a company may also face separate liability under the rules on collective entities.

Civil liability under Directive 85/374/EEC, implemented by Articles 449(1)–449(11) of the Polish Civil Code, is objective. The claimant must establish the defect, damage and causal link, not the producer's fault. Personal injury compensation has no upper monetary limit and may include compensation for the close family members of the deceased under Article 446 §4 of the Civil Code.

Administrative action is usually the fastest. The competent state sanitary inspector may order withdrawal, suspension of production or closure of an establishment where there is a direct threat to life or health. GIS may also suspend or revoke establishment approval under Article 66 of the Act on food and nutrition safety.

Expert tip: Criminal, civil and administrative proceedings use different rules and standards of proof. An acquittal does not automatically prevent civil liability or an earlier administrative decision.

RASFF: an alert that does not wait for a judgment

A serious health hazard can trigger RASFF under Article 50 of Regulation (EC) No 178/2002. GIS must notify the European Commission without delay, and the alert is circulated to Member States. The notification is public. In commercial practice, distributors and retail chains may withdraw the product across the EU before any court has ruled on the producer's liability.

Will the EU tighten the rules on raw milk?

A complete EU ban on raw milk cheeses is unlikely in the current legislative context. The Farm to Fork Strategy envisaged a review of hygiene rules, but protected geographical-indication cheeses are also part of the cultural and economic interests of several Member States, especially France and Italy.

A more realistic route is a gradual tightening of Regulation (EC) No 2073/2005 through comitology, without banning the category or amending Regulation 853/2004. Regulation (EU) 2024/2895, applicable from 1 July 2026, illustrates this approach: the producer must be able to substantiate the applicable Listeria criterion over the shelf life. The practical expectation is therefore not an immediate ban, but higher documentation and validation standards.

What this means in practice for producers

Lawful operation in Poland is not the same as the absence of legal risk. A producer should first ensure that the ripening process has documented validation for Listeria growth under Annex II to Regulation 2073/2005. The producer should also identify the national rules of every intended export market. A label warning can be useful evidence of risk management and due diligence, but it is not a substitute for microbiological control and does not transfer legal risk to the consumer.

Disclaimer: This article is for general information only and does not constitute legal advice in an individual matter. The legal position should be checked against the facts and the law applicable at the time.