Judge Dismisses the “No Tuna” in Subway Tuna Case

Last week, a federal court judge in California dismissed the case against Subway restaurants that originally alleged that there was no tuna in Subway tuna sandwiches. (See our original story.) The case drew worldwide attention.

No Tuna Quotes

The consumers who sued said they had laboratory test results to back up their claims that “the Products are made from a mixture of various concoctions that do not constitute tuna,” but they never revealed what it really was.

In our original story, we showed pictures of the label on the bulk packages from which Subway makes their tuna sandwiches, and it clearly showed that flaked tuna was the primary ingredient. Other media outlets ran their own tests of Subway tuna, and at least one confirmed it was real tuna. (See our second story.)

Then in June, lawyers for the consumers quietly amended their complaint dropping all their original “no tuna” claims, and substituting a new claim that Subway’s tuna is “not 100% sustainably caught skipjack and yellowfin tuna” as advertised. We pointed out in our third story that the only place we could find that claim by Subway was buried in the social responsibility section of the company’s website. And no customer standing at a Subway counter first goes to check that page before ordering.

So if consumers never saw the claimed misrepresentation, how could they claim they relied on it, were misled by it, or harmed by it? And that was exactly how the judge ruled last week:


Although Plaintiffs allege that they purchased Subway sandwiches “[i]n reliance on Defendants’ misleading marketing and deceptive advertising practices,” they do not say that they actually read or heard any such advertising or packaging.

Plaintiffs are the only ones who can identify which statements they saw and relied upon and where they saw them. Subway cannot properly defend itself against a complaint that does not identify the misstatements it allegedly made. [See ruling.]

So the judge dismissed the case but is allowing the plaintiffs to refile another amended complaint.

In a statement issued by the company, Subway said, “We commend the court for dismissing the reckless and improper lawsuit surrounding Subway’s tuna.”

What Does “Veggie” Mean on Food Labels?

It seems like almost every new product today is called “plant-based” this and “veggie” that. But what exactly does “veggie” on a label mean to shoppers? Like “all natural,” “veggie” is not a defined term in federal law.

But, according to the dictionary, a “veggie burger” is “a patty chiefly of vegetable-derived protein used as a meat substitute.”

Kellogg’s has been marketing a whole bunch of “veggie” products under the MorningStar Farms label for quite a while. This includes burgers, sausage patties, hot dogs, etc.

MorningStar hot dogs

A look at the ingredients statement, however, reveals little in the way of vegetables or vegetable protein.


MorningStar ingredients

So a California consumer just filed a lawsuit against Kellogg’s for misrepresentation. To be fair to Kellogg’s, most of their other MorningStar products contain greater amounts of soy (a vegetable), though not a majority of the product, such as in their Veggie Griller burgers:


MorningStar burgers ingredients

But is soy flour the main vegetable protein ingredient we expect to be in a veggie burger or other meat substitute? What does seeing “veggie” on a product label mean to you? Add your thoughts in the comments section.

Purina Grain-Free Dog Foods Allegedly Contain Grains

Imagine deliberately seeking out a grain-free or limited-ingredient dog food because your dog has an allergy to wheat or soy, for example, only to learn that the product is not actually wheat-free or soy-free.

That’s what happened to a number of consumers who purchased Purina Pro Plan Adult Sensitive Skin & Stomach Salmon & Rice Formula, Purina Pro Plan Adult Sensitive Skin & Stomach Lamb & Oat Meal Formula, and Purina Beneful Grain Free with Farm-Raised Chicken accented with Blueberries, Pumpkin
and Spinach.

Purina Grain-Free

So they filed a lawsuit against Purina at the end of August. Each of the plaintiffs tells the story of having an allergic dog that improved when eating only whole foods. But that was an expensive proposition. So they switched to one of these grain-free products but discovered the allergic symptoms recurred. How could that be if the particular product did not contain the offending allergen?


According to the suit:

…independent testing of the Subject Foods confirms that these representations are false. Both Pro Plan formulas contain significant amounts of wheat, while the Beneful formula contains significant amounts of soy.

The complaint does not specify the exact amounts of the offending ingredients that were discovered, however. “Significant amounts” to the plaintiffs may be trace amounts to a judge.

As a result of their test finding, the plaintiffs alleged that Purina misrepresented the contents of these premium-priced products. As such, they say they overpaid for them or wouldn’t have purchased them in the first place.

Undeclared ingredients may be an industry-wide problem in the pet food business according to prior studies. Researchers in 2014, for example, found that 82% of products tested contained certain ingredients that were not listed on the label. That is a scary thought if you have to carefully watch what you feed your pet.