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.)

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.

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.