Judge refuses to dismiss entirety of Subway tuna false-claims lawsuit
A U.S. federal court judge has refused to dismiss part of a class-action lawsuit against Subway alleging the restaurant chain does not use 100 percent tuna in its tuna sandwiches and wraps.
However, the judge agreed with Subway on some of its motions to dismiss the suit.
Plaintiffs Karen Dhanowa and Nilima Amin filed the complaint against Subway Restaurants in January 2021 in the U.S. District Court for the Northern District of California. They first claimed Subway tuna products contain a mixture of various ingredients that do not constitute tuna, “yet have been blended together by [Subway] to imitate the appearance of tuna,” according to the complaint.
In an amended complaint filed in June 2021, the plaintiffs shifted focus to Subway’s marketing and advertising claims that its tuna is 100 percent sustainably-caught skipjack and yellowfin tuna.
In a new order, U.S. District Court Judge Jon S. Tigar partially granted and partially denied a motion by Subway to dismiss the amended complaint. Tigar said consumers understand that tuna salad is made with a variety of ingredients, such as mayonnaise, but that they have a reasonable expectation of Subway’s products “other fish species, animal species, or miscellaneous products,” which the plaintiffs alleged in November 2021.
"Subway argues that any non-tuna DNA discovered when testing its tuna products must come from the eggs in mayonnaise or from cross-contact with other Subway ingredients. Although it is possible that Subway’s explanations are the correct ones, it is also possible that these allegations refer to ingredients that a reasonable consumer would not reasonably expect to find in a tuna product,” Tigar wrote.
In addition, a reasonable consumer would expect that a product advertised as “tuna” to contain at least some tuna as an ingredient, so Tigar would not dismiss Subway’s motion to dismiss the claim some Subway tuna sandwiches contain no tuna at all, as alleged by the plaintiffs. Tigar also refused to dismiss the case over Subway’s concerns about plaintiffs’ laboratory testing, which produced some of the data being relied upon by the plaintiffs in their complaint.
“While Subway argues that the complaint fails because there is not enough information about the laboratory testing to make it reliable, [n]othing … suggests [the plaintiffs] must provide specifics about the means by which the falsity was revealed,” Tigar wrote.
However, consumers understand that tuna salad is usually mixed with mayonnaise and that a tuna sandwich will contain bread, Tigar wrote. "Indeed, even the operative complaint acknowledges that Subway advertises that its tuna salad consists of tuna ‘blended with creamy mayo.’”
“Without an affirmative misrepresentation, the court will not suspend logic and find that a reasonable consumer would be misled by the mere fact that Subway’s tuna products include any ingredients beyond tuna. The court grants Subway’s motion to dismiss as to this theory,” Tigar wrote.
Subway said in a statement provided to SeafoodSource it will continue to fight the lawsuit.
“Subway serves 100 percent tuna. We are disappointed the court felt it couldn't dismiss the plaintiffs’ reckless and improper lawsuit at this stage. However, we are confident that Subway will prevail when the court has an opportunity to consider all the evidence,” the restaurant chain said.
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