Does Subway have 100 percent tuna? Judge allowing litigation to move ahead

Photo of Paul Schott

MILFORD — The legal battle over the tuna in fast-food giant Subway’s products is not over yet.

A federal judge has ruled that one of the plaintiffs in litigation started last year that alleges the Milford-based company falsely advertises its tuna products as “100 percent tuna” can file an amended complaint. Subway has denied the lawsuit’s allegations, maintaining that any non-tuna DNA discovered in the testing of its tuna products comes from the eggs in mayonnaise or cross-contact with other ingredients.

“Although it is possible that Subway’s explanations are the correct ones, it is also possible that these allegations refer to ingredients that a reasonable consumer would not reasonably expect to find in a tuna product,” Judge Jon Tigar, who presides in the U.S. District Court for the Northern District of California, said in a July 8 ruling.

Tigar also said that one of the plaintiffs, Nilima Amin, could keep trying to prove that Subway’s products “wholly lack” tuna.

“Even if the court accepted Subway’s statement that all non-tuna DNA must be caused by cross-contact with other Subway ingredients, it still would not dismiss the complaint on this basis, “ Tigar said. “Whether, and to what extent, a reasonable consumer expects cross-contact between various Subway ingredients is a question of fact.”

Tigar rejected, however, the lawsuit’s argument that a “reasonable consumer” would expect a tuna salad, sandwich or wrap to contain 100 percent tuna and “nothing else.” He asserted that consumers would understand that, given the “well-known facts of life,” such products would likely also contain non-tuna ingredients.

Between 2013 and 2019, Amin “ordered, purchased and consumed over 100 tuna products” from Subway restaurants, particularly one in Palo Alto, Calif., according to her lawsuit. She ordered those offerings for “health and weight-loss purposes,” the lawsuit said.

“Defendants have engaged in economic adulteration by selling a food product that partially or wholly lacked the valuable constituents of the tuna as represented by Subway, and that had been substituted in part or whole,” said the lawsuit, which cites testing of tuna products from 20 southern California Subway restaurants that was conducted by researchers at a lab at the University of California, Los Angeles. “Defendants have further committed unlawful adulteration by concealing the inferiority of the tuna products.”

At the same time, Tigar granted Subway’s motion to dismiss the claims of another plaintiff, Karen Dhanowa, who he said, “does not allege that she purchased any Subway products, does not allege that she relied on any statements that Subway made and does not allege that she suffered any harm.”

A message left Wednesday for Subway was not immediately returned.

Subway’s website includes a “tuna facts” page, in which it asserts that it uses “wild-caught skipjack tuna regulated by the Food and Drug Administration. A favorite among sub lovers, our tuna is and always has been high-quality, premium and 100 percent real.”

Amin and Dhanowa filed their original complaint against Subway in January 2021. Before Subway could respond, they filed an amended complaint. The court granted Subway’s motion to dismiss without prejudice, finding that the plaintiffs’ fraud claim did not meet certain criteria because the complaint did not “describe the specific statements they saw and relied upon, when they saw the statements and where the statements appeared.”

The plaintiffs then filed a second amended complaint, prompting Subway to file another motion to dismiss.

Unrelated to the litigation, Subway announced late last month that it would relocate its longstanding headquarters near Interstate 95’s Exit 35 in Milford to Enterprise Corporate Park in Shelton.

pschott@stamfordadvocate.com; twitter: @paulschott