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Subway Tuna Case Enters Round Three

The Subway tuna saga continues with yet another filing of the case.

Last January, two California consumers sued Subway alleging that there was no tuna in their tuna sandwiches. They even had laboratory tests to prove it but refused to disclose the actual findings. (See our first story.) The story made headlines around the world.

Subway Tuna Headlines

Subsequently, various media did independent laboratory tests of their own tuna samples with varying results. (See our second story.) Inside Edition found it did contain tuna, while a later test by the New York Times did not. Subway has refuted the NYT story.

Then in June, lawyers for the consumers without explanation completely abandoned their claim that there was no tuna in Subway tuna sandwiches, and filed an amended complaint. (See our third story.) This time they claimed that Subway’s tuna was “not 100% sustainably caught skipjack and yellowfin tuna” and thus customers were being misled.

In October, a federal court judge dismissed the case against Subway saying that the consumers did not say they had even seen the claim about the specific species of tuna used, so how could they have been misled by it. (See our fourth story.)

Now, two weeks ago, believe it or not, the consumers’ lawyers refiled their case. Now they are back to claiming that consumers are being misled because there is no tuna in Subway’s tuna sandwiches. This time, however, they hired a marine biologist who conducted DNA tests on 20 samples collected from 20 different Subway locations in California. The results…

*MOUSE PRINT:

Of the twenty samples tested, nineteen of them had no detectable tuna DNA sequences whatsoever. Additionally, the test results indicate that all twenty of the samples contained detectable sequences of chicken DNA; a majority of the samples (eleven out of twenty) contained detectable sequences of pork DNA; and some of the samples (seven out of twenty) contained detectable sequences of cattle DNA.

An attorney for Subway told the Washington Post, “The plaintiffs’ latest attempt to state a claim against Subway is just as meritless as their prior attempts. These claims are false and will be proven to be completely meritless if the case gets past the pleading stage.” He also suggested that the DNA tests done were flawed because they can’t reliably identify food that has been cooked.

So in the end, maybe Jessica Simpson asked the right question in that infamous video… is this stuff fish or chicken?

We’ll keep you posted on the outcome of round three of this fishy case.

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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:

*MOUSE PRINT:

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.”

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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.

*MOUSE PRINT:

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:

*MOUSE PRINT:

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.