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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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Cold-Eeze: Reduces Duration of Common Cold Symptoms by 42%?

A recent commercial and packaging for Cold-Eeze — those cherry-flavored lozenges with zinc gluconate — claims to reduce the duration of common cold symptoms by 42%.

Cold-Eeze 42% claim

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Cold-Eeze asterisk

It turns out that the scientific study on Cold-Eeze that supports the 42% claim was done a quarter of a century ago in 1996 and involved only 50 hospital employees who took the product and 50 who did not. [Full study here.] It seems odd that the company would introduce this new claim now after sitting on this data for decades.

Many people like the product despite the fact that no one can really say for sure that their cold ended more quickly than if they had not taken the zinc drops.

Interestingly, Cold-Eeze has extended its product line to include cold remedies that also supposedly promote immune health and help with fatigue. The asterisk after that claim goes to the most candid of disclaimers:

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Cold-Eeze disclaimer

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Chobani Exaggerated Protein Content of it’s Complete Yogurt

When Chobani advertised that its “Complete” yogurt products contained up to 25 grams of protein, the makers of Dannon yogurt cried foul. Here is the commercial claim in question:

Chobani Complete claim

*MOUSE PRINT:Chobani Complete 3
It turns out that two of the three products shown in the ad did not have 25 grams of protein per serving. They only had 15 and that distinction was not made clear.

So Dannon filed a formal complaint with the National Advertising Division (NAD) of the Better Business Bureau. Before NAD could render a decision, Chobani announced that it would stop making the 25 grams of protein claim about its 5.3 ounces yogurt cups, and make clear that the claim only applied to their 10-ounce shake product.

“Up to” claims are inherently misleading because they highlight the best case scenario and ignore the worst case. That’s why Massachusetts advertising regulations, for example, require both the lowest number and the highest number in a range to be disclosed in equal size type, such as “save 10 to 50 percent” rather than “save up to 50 percent.”