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Lawyers Drop Claims of “No Tuna” in Subway’s Tuna Sandwiches

In January, two consumers (and their law firms) made international headlines when they claimed in a class action lawsuit that there was no tuna in Subway’s tuna sandwiches. They even said they had lab tests to prove it. (See our original story and our follow-up story.)

Subway Tuna Headlines

We asked the law firms for their test results at the time, but they would not provide them nor answer any questions. When news of the lawsuit broke, Subway launched an extensive advertising campaign denying the claim and saying that their tuna was 100% tuna.

Subway 100%

Now, five months after the original bombshell complaint was filed, the consumers’ lawyers filed an amended complaint on June 7 backing off their original contention that there was no tuna in Subway’s tuna sandwiches. (Gee, what happened to all their damning test results?)

The suit is now claiming, among other things, that Subway’s tuna is “not 100% sustainably caught skipjack and yellowfin tuna” and thus customers are being misled.

But how was this claim about the type of tuna used communicated by Subway to customers or prospective customers to influence their purchase decision? The only reference we could find was buried in the social responsibility section of the Subway website.

We posit that most consumers were probably never misled by the website’s skipjack/yellowfin claim (if in fact it is false) because most people stepping up to the food counter don’t check the social responsibility section of the Subway website first before placing their sandwich order. We also checked a couple of Subway locations, and there were no handout menus with that claim nor any reference to the types of tuna used on the wall menu. So on this point, we think this claim may be a little fishy unless the type of tuna purportedly used was widely advertised by Subway and was not true.

*MOUSE PRINT:

The complaint goes on to allege that Subway knows or should know about:

‘vulnerabilities in the [overseas] tuna supply chain’ and have not taken ‘sufficient measures to control or prevent the known risks of adulteration. On the contrary, they actively perpetuate actions and steps that encourage mixing non-tuna ingredients into the Products.’ … ‘Defendants lack a reliable and standardized protocol to ensure that the contents of these sealed vacuum bags are actually tuna.’

The lawyers claim that Subway tuna is adulterated but do not say they have tests to prove the packaged tuna that Subway uses has other ingredients or other species of fish mixed in with the actual tuna. However, if they can prove it is not 100% tuna, and it contains more than just some inconsequential amount of other fish, then they have a point.

We asked Subway at least three times to comment on the plaintiffs’ new complaint and the dropping of the original “it contains no tuna” claim. The company did not respond. And checking with one of the consumers’ law firms that brought the case yielded no answers as to why they dropped the “no tuna” claim and if they have test results to back up their new claims.

Subway presumably lost a ton of money and suffered damage to its reputation when the original case was filed claiming that there was no tuna in Subway’s tuna sandwiches. So, you might wonder if Subway could sue the lawyers for defamation. Generally speaking the answer is no because of what is known as the “litigation privilege” that generally exempts claims in court filings from being the subject of a libel suit.

We’ll keep an eye on this case and report any significant future developments.

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Amazon Quietly Changes Terms of Service Dropping Mandatory Arbitration

In a move consumer advocates never thought they would ever see, a major company, Amazon, has dropped from its terms of service the mandatory arbitration clause to settle disputes. This now allows Amazon customers to sue them in court and be part of class action lawsuits.

The change occurred on May 3, 2021, with no announcement or fanfare, as first reported last week by the Wall Street Journal.

The new language in Amazon’s “conditions of use” is short and sweet.

*MOUSE PRINT:

DISPUTES
Any dispute or claim relating in any way to your use of any Amazon Service will be adjudicated in the state or Federal courts in King County, Washington, and you consent to exclusive jurisdiction and venue in these courts. We each waive any right to a jury trial.

The change came about because some brilliant consumer lawyers used Amazon’s old mandatory arbitration rules to their own advantage. Those rules provided that Amazon would cover consumers’ arbitration filing fees. So what did these lawyers do? They filed 75,000 arbitration cases on behalf of Amazon Echo owners complaining that the smart speakers recorded users without their permission. That move triggered a bill for tens of millions dollars in filing fees that Amazon was asked to pay.

For reference, here is Amazon’s old rule mandating arbitration of claims:

*MOUSE PRINT:

DISPUTES
Any dispute or claim relating in any way to your use of any Amazon Service, or to any products or services sold or distributed by Amazon or through Amazon.com will be resolved by binding arbitration, rather than in court, except that you may assert claims in small claims court if your claims qualify. The Federal Arbitration Act and federal arbitration law apply to this agreement.

Payment of all filing, administration and arbitrator fees will be governed by the AAA’s rules. We will reimburse those fees for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous. [Emphasis added]

We each agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. If for any reason a claim proceeds in court rather than in arbitration we each waive any right to a jury trial.

What doesn’t quite make sense is that Amazon’s old rule only promised to reimburse consumers’ filing fees and not that they would pay them upfront. So we asked the consumer lawyer who filed these tens of thousands of arbitration cases and then billed Amazon for millions in filing fees to explain if he really laid out all that money from his own pocket to file these cases. He did not respond.

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Advertising Masquerades as Program Content on Local TV Shows

Over the years, we have repeatedly spotlighted examples of national television programs that broadcast stories or segments where they were “secretly” being paid by the subject featured and pretty much kept viewers in the dark about that practice:

  • Bargain segments on Good Morning America, The Today Show, and The View;

  • Health segments on Inside Edition pitching cosmetics;

  • Doctor segments on The Talk pitching cosmetics;

  • Health insurance information segment on Dr. Phil.

    These types of shenanigans are not limited to national talk shows. A recent episode of John Oliver’s This Week Tonight gave example after example of local television program segments bought and paid for by the subject of the broadcast with often poor disclosure of that fact to the viewing audience.

    To demonstrate how some local stations will just blindly broadcast informational segments by anyone willing to pay the price, his producers created a phony product — the Venus Veil sexual health blanket — a medical blanket infused with magnetic fibers that claimed to stimulate blood flow for improved sexual performance and pleasure. And believe it or not, three local television stations in Utah, Texas, and Colorado actually broadcast interviews with a spokesperson for this phony product. [Warning: this video contains coarse language.]

    To see the elaborate lengths that this program went to in order to create a phony product and get it aired on local stations, visit Venus Inventions.

    When real products are being featured on local television, the consumer issue is whether the product’s maker has paid for the appearance and if the viewing audience has been adequately made aware of that fact. Viewers have a right to know if they are really watching a commercial rather than a regular program feature. At least at these local stations, not much appears to have been done to vet the product shown, and it is unclear how well the audience was informed that this was sponsored content.

    Under the FCC’s “payola” rules, if a program’s producers receive payment to feature a product, that fact must be disclosed to viewers during the program. Similarly, the FTC has two sets of advertising guidelines. They both require clear and timely disclosure — in other words, no mouse print if (1) there is any financial connection between a presenter and the products being touted (endorsement and testimonial guidelines) and (2) the presentation looks like a regular part of the program but is in fact commercial in nature (native advertising guidelines). Of particular relevance is the FTC’s Enforcement Policy Statement on Deceptively Formatted Advertisements.

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