A U.S. judge rules that Subway can be sued over its '100% tuna' claim

A federal judge says a woman's lawsuit against Subway can move forward, refusing the restaurant chain's request to dismiss the suit that alleges its tuna sandwiches "partially or wholly" lack tuna.

Plaintiff Nilima Amin of Alameda County, Calif., says Subway misled her and other consumers by saying its sandwiches and other products contain "tuna" and "100% tuna."

Amin's lawsuit cites a marine biologist who analyzed 20 samples of tuna offerings from 20 different Subway restaurants and found "no detectable tuna DNA sequences whatsoever" in 19 samples. But, Amin says, the samples did contain other types of animal DNA, such as from chicken and pork.

Subway asked U.S. District Judge Jon Tigar to dismiss the case, saying in part that its tuna sandwich routinely includes other ingredients, such as mayonnaise (which contains eggs).

Subway also says a reasonable consumer watching a "sandwich artist" prepare their order would recognize that there's a chance for cross-contact between various ingredients.

But Tigar recently ruled that Amin's lawsuit should continue, saying the facts at the heart of the case aren't settled. He also noted that some of the allegations "refer to ingredients that a reasonable consumer would not reasonably expect to find in a tuna product."

As that quote suggests, the case centers on what consumers expect when they order a tuna sandwich: The word "tuna" appears 244 times in the plaintiff's 28-page amended complaint.

Amin is seeking a jury trial and class-action status for her lawsuit, which accuses Subway of fraud, false advertising, and unfair competition. The suit seeks restitution, punitive damages and "disgorgement of all ill-gotten gains" from Subway, one of the top-grossing restaurant chains in the U.S.

In response to a request from NPR, a Subway spokesperson insisted on the integrity of its fish sandwich, stating, "Subway serves 100% tuna."

Of Judge Tigar's ruling, they added, "We are disappointed the Court felt it couldn't dismiss the plaintiffs' reckless and improper lawsuit at this stage."

The suit repeatedly states that when someone orders a tuna sandwich, they should not be given a sandwich that contains "other fish species, animal products, or miscellaneous products."

Months after the lawsuit emerged in early 2021, more questions arose about Subway's tuna when The New York Times reported that testing it commissioned of fish samples from three Subway locations found "no amplifiable tuna DNA" of the five tuna species for which it tested.

In response to the allegations, Subway has maintained that it uses "wild-caught skipjack tuna regulated by the Food and Drug Administration" — as the company states on a special website it created called SubwayTunaFacts.com.

Subway says the Times report is false, and relies on a type of DNA test that can't reliably determine whether a food sample contains tuna, particularly if the meat has been cooked and processed.

The lawsuit against Subway states that lab testing of tuna samples targeted four different primers, including vertebrates and tuna. The most recent complaint doesn't single out any specific type of tuna, although earlier versions of the complaint did.

The judge in the U.S. District Court for the Northern District of California did give Subway a partial victory, dismissing the claims of Amin's fellow plaintiff who hadn't confirmed whether she had paid for a Subway tuna sandwich. He also dismissed part of Amin's suit that he described as stating a "tuna salad, sandwich, or wrap contains 100% tuna and nothing else."

Tigar gave Amin three weeks to respond to that portion of his ruling, before the case moves to the next stage.

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