OAKLAND, Calif. (CN) — A federal judge on Thursday denied sandwich giant Subway's bid to dismiss consumers' claims the tuna served in its restaurants isn't tuna at all.
Karen Dhanowa and Nilima Amin grabbed national headlines in 2020 when they accused Subway of duping consumers into paying more for sandwiches advertised as tuna without having tuna in them at all.
“In truth, the products do not contain tuna as ingredient. On the contrary, the filling in the products has no scintilla of tuna at all. In fact, the products entirely lack any trace of tuna as a component, let alone the main or predominant ingredient,” the women claimed in their lawsuit filed in the Northern District of California.
Speculation abounded. A New York Times reporter actually purchased 60 inches of sandwich, removed the tuna and sent it off to a lab for analysis. The results were inconclusive, as the meat was too processed to identify.
Since then, the sandwich chain has launched a campaign to defend itself against these accusations, even creating a website — SubwayTunaFacts.com — as a defense from the lawsuits and a New York Time investigation.
This past October, U.S. District Judge Jon Tigar tossed the women's lawsuit, finding they failed to meet a critical standard for describing any fraudulent conduct.
The plaintiffs fired back with an amended complaint claiming Subway’s tuna either partially or wholly lack tuna. In fact, they claimed the tuna may contain other fish and animal products, or miscellaneous products — noting samples from California restaurants indicated the tuna filling was “a mixture of various concoctions that do not constitute tuna, yet have been blended together by defendants to imitate the appearance of tuna.”
They did not report what lab tests found in lieu of tuna. But Subway denied these claims, telling Food and Wine that “Subway delivers 100% cooked tuna to its restaurants, which is mixed with mayonnaise and used in freshly made sandwiches, wraps and salads that are served to and enjoyed by our guests. Given the facts, the lawsuit constitutes a reckless and improper attack on Subway's brand and goodwill, and on the livelihood of its California franchisees."
Ruling on a new motion to dismiss, Tigar found Thursday that Dhanowa's claims should be nixed with prejudice since she had apparently never purchased tuna sandwiches from Subway. He also accepted Subway's argument that no consumer would be misled into thinking its tuna products didn't contain other ingredients — mayonnaise, bread, other things normally found in a tuna sandwich — and dismissed claims made on that basis.
But Tigar declined to dismiss claims that Subway's tuna contains "other fish species, animal species or miscellaneous products."
While Subway argued that any non-tuna DNA discovered in tests must have come from the eggs in mayonnaise or cross-contact with other ingredients, Tigar said it is possible it comes from ingredients consumers wouldn't expect to be in a tuna sandwich.
"Even if the court accepted Subway’s statement that all non-tuna DNA must be caused by cross-contact with other Subway ingredients, it still would not dismiss the complaint on this basis," Tigar wrote. "Whether, and to what extent, a reasonable consumer expects cross-contact between various Subway ingredients is a question of fact."
He also denied Subway's motion to dismiss claims its tuna products have no tuna at all "because a reasonable consumer would expect that a product advertised as 'tuna' to contain at least some tuna as an ingredient."
As for claims of fraud in advertising, Tigar found Amin provided enough details for why the company’s descriptions could be misleading if there are other ingredients besides tuna in a tuna product. He also said at this stage in the litigation, nothing in the law requires Amin to provide specifics about the lab tests she and her attorneys had run on the tuna product.
Subway’s lawyer Mark C. Goodman did not respond to a request for comment by press time.
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