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The Subway Tuna/No Tuna Saga Continues

For the past year and a half, two California consumers have doggedly pursued Subway, the sub sandwich restaurant chain, claiming that its tuna subs contained no tuna according to their laboratory tests. (See our first story.)

The case brought headlines worldwide.

Subway Tuna Headlines
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After some media conducted their own tests and one found real tuna in Subway’s tuna sandwiches, the consumers withdrew the case and filed an amended complaint claiming that their tuna was not 100% sustainably caught skipjack or yellowfin tuna. (See our third story.)

A judge dismissed the case, and then the consumers refiled a new one, now claiming they tested 20 samples from all over California, and only one contained tuna. (See our fifth story.)

The company has consistently denied the allegations and recently moved to have the current case dismissed again.

The judge made his ruling last week.

*MOUSE PRINT:

As Subway correctly notes, the amended complaint contains no facts pertaining to Dhanowa [one of the two consumers suing Subway]; it “does not allege that she purchased any Subway products, does not allege that she relied on any statements that Subway made and does not allege that she suffered any harm.” ECF No. 57 at 9. Plaintiffs do not respond to this argument. The Court therefore grants Subway’s motion to dismiss Dhanowa’s claims.

So Subway wins on that score, getting rid of one of the two plaintiffs.

The judge continued:

…the Court will not dismiss the allegation that the tuna products contain “other fish species, animal species, or miscellaneous products.” Moreover, 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.

Finally, the complaint alleges that the products “wholly lack[] tuna as an ingredient.” Because a reasonable consumer would expect that a product advertised as “tuna” to contain at least some tuna as an ingredient, the Court also denies the motion to dismiss this theory.

The Court finds that the complaint “as a whole” is sufficiently specific about what is false and why. It states that the “tuna” description is false either because there is no tuna in the products and/or because there are ingredients that a reasonable person would not expect to find in an item described as “tuna.” That is enough.

In summary, the judge felt the one remaining consumer theoretically does have a case if she can prove that Subway tuna sandwiches are not 100% tuna (except for mayonnaise, bread, etc.) or contain unexpected non-tuna components.

No date has been set for the trial. We’ll keep an eye on the case.

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6 thoughts on “The Subway Tuna/No Tuna Saga Continues”

  1. This is so stupid. I have worked at several different subways in two different states over a span of 20 years. The tuna is tuna. It comes from a can or pouch of name brand tuna and the only thing it’s mixed with is mayo. Someone just wants some easy cash.

    • What can and what “pouch?” Can you tell us the name brand? Can you say with absolute certainty what you thought was tuna was nothing “but” tuna? No, you can’t.

  2. This is just desperation piled onto desperation piled onto desperation. How do these people find lawyers to dedicated all this time to. I understand the judge didn’t have sufficient reason to dismiss the case, but even he must see at this point that this is just vindictive. I wonder if this is somehow being supported by one of Subway’s competitors.

    Either way, Subway’s tuna is tuna. My wife used to work there and she can tell you it’s tuna. The label says tuna, it smells like tuna, it looks like tuna, and if it isn’t tuna that’s going to fall back on Subway’s supplier which is a well known established brand of tuna.

    I wonder if Subway has any recourse for suing this person for defamation at this point.

    • I’m a regular Joe, who eats seafood but not meat. The Only sandwich that I ever order there is the tuna as I feel like I’m getting a “healthier” option to the common veggie burger as it’s less processed. I for one am pissed that everything I’ve been eating there isn’t real tuna. I woulda just gone elsewhere if I knew they’re cutting corners and serving me crap. That’s why I don’t typically eat fast food that’s deep fried. If anything, I hope this suit forces Subway to stop cutting corners and freaking serve what I’m paying for. Obviously not a lot of people are like me and shouldn’t care about this suit, but please know that there is a smaller part of the population that this does affect.. Now could the tuna be a 3rd party supplier to Subway cutting corners? OF COURSE, and frankly it’s on Subway to sue their supplier or straighten out their sourced goods.

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