Judge tosses Subway “fake tuna” lawsuit

A Subway Restaurant tuna sandwich. A lawsuit claiming the tuna did not contain tuna was dismissed in federal court on 7 October.

A federal judge has dismissed a class-action lawsuit claiming Subway Restaurants’ tuna sandwiches and wraps did not contain any actual tuna.

The lawsuit was filed on 21 January, and subsequently gained national media attention when a New York Times report claimed its lab testing didn’t find evidence of tuna DNA in the company’s sandwiches. At the time, the company defended its tuna products, and DNA testing experts contacted by SeafoodSource confirmed that the tests used by The New York Times wouldn’t have been adequate to detect tuna DNA.

The plaintiffs in the case – Karen Dhanowa and Nilima Amin – originally claimed that Subway’s tuna sandwiches didn’t contain “100 percent tuna” as the company advertised, and instead contained a mix of other ingredients. Those claims later shifted, in an amendment on 7 June, to questioning whether the tuna species the company identified – yellowfin and skipjack – were present in the tuna.

The decision by U.S. District Court Judge Jon Tigar found because the lawsuit was alleging fraud, it needed to satisfy Federal Rule of Civil Procedure 9(b), something the plaintiffs failed to do by not identifying the specific nature of the fraud in question.

“To meet the heightened pleading standard, plaintiffs still need to describe the specific statements they saw and relied upon, when they saw the statements, and where the statements appeared,” Tigar wrote. “Subway cannot properly defend itself against a complaint that does not identify the misstatements it allegedly made.”

As a result of the failure on the plaintiff’s part, the court “will grant Subway’s motion to dismiss with leave to amend.”

Subway's attorney, Mark Goodman, asked the court to sanction the plaintiffs and their attorneys following the lawsuit, according to Courthouse News.

“While Subway has offered the plaintiffs’ and their counsel a graceful exit from the morass they had created by simply dismissing their claims with prejudice and issuing a public apology, they have instead doubled down on their destructive  behavior with new, equally unsupportable claims that they refuse to withdraw,” Goodman wrote.

Subway CEO John Chidsey told CNN that the science of testing DNA in processed tuna showed the company’s tuna was always real.

“I say follow the science, and if you follow the science, once tuna is cooked, its DNA becomes denatured, which means when you go to test it, you can't tell one way or the other,” Chidsey said.

Subway has gone to great lengths to defend itself from the accusations that the company doesn’t use real tuna. The company went so far as to create a website – SubwayTunaFacts.com – to defend itself from both the lawsuit and the subsequent reports in The New York Times.

“We know there’s been a lot of talk on this topic, including misinformation generated in the media, so we created this page to set forth the facts and help clarify any misunderstandings,” the company said on the website.

The website includes an extensive Q&A and testimony from industry experts on the subject, including referencing tests by Applied Food Technologies – the only lab in the U.S. capable of testing the small, processed particles of tuna – that found evidence of skipjack and/or yellowfin tuna in every tuna sample it tested.

Subway said it welcomed the decision by the court to dismiss the lawsuit.

“We commend the court for dismissing the reckless and improper lawsuit surrounding Subway’s tuna,” a Subway spokesperson told SeafoodSource.  

Photo courtesy of TY Lim/Shutterstock


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