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.
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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