The Subway tuna lawsuit still hangs over the head of the chain after the verdict

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Like the company’s Eat Fresh Refresh campaign, the Subway tuna lawsuit continues to offer new surprises and provides more reasons to revisit the chain and the way it builds a sandwich.

Last week, a federal judge declined to dismiss portions of the amended tuna lawsuit, the third filed by Karen Dhanowa and Nilima Amin in the US District Court for the Northern District of California. In their November complaint, residents of Alameda County in the Bay Area alleged that Subway’s labeling and marketing materials misled them into “purchasing high-priced foods based on the representation that the tuna products contain only tuna and no other animal-based fish.” Products or other things contained ingredients.”

Subway’s tuna lawsuit is dismissed, but the ruling says nothing about Subway’s tuna

In the filing, plaintiffs claimed that 19 of the 20 samples collected from Southern California Subway locations contained “no detectable tuna DNA sequences at all” based on DNA barcode testing performed by the Barber Lab at the Department of Ecology and Evolutionary Biology at UCLA. They also claimed that all 20 samples contained “detectable sequences of chicken DNA,” while 11 samples contained pig DNA and seven contained bovine DNA.

Then as now, Subway denied the allegations, saying the fish in its sandwiches was 100 percent wild-caught tuna. Additionally, in December, the company’s attorneys filed a motion asking US District Court Judge Jon S. Tigar to dismiss the lawsuit with prejudice.

In his order of July 7th Tigar dismissed the claims of Dhanowa, who allegedly offered no evidence that she had purchased Subway products or “suffered damage.” Tigar also denied the plaintiffs’ allegation that Subway deceived customers by selling sandwiches that were not 100 percent tuna. Reasonable consumers, the judge noted, understand that tuna salad sandwiches contain mayonnaise, bread and other ingredients.

However, the judge declined to dismiss the claim that Subway’s tuna products contain “other species of fish, animal species, or different products.” Subway claims that any evidence of other animal DNA likely came from the eggs in the mayonnaise or from cross-contacting the ingredients, since a sandwich maker — dubbed a “sandwich artist” in Subway’s corporate culture — uses the same gloves, utensils, and slices Boards to prepare various items.

“While it’s possible that Subway’s statements are accurate, it’s also possible that these claims relate to ingredients that a reasonable consumer would not reasonably expect to find in a tuna product,” Tigar wrote.

“Furthermore,” the judge continued, “even if the court accepted Subway’s testimony that all non-tuna DNA must be caused by cross-contact with other Subway ingredients, the lawsuit on that basis still would not.” reject. Whether and to what extent a reasonable consumer would expect cross-contacts between different Subway ingredients is a matter of fact.”

Mark C. Goodman, an attorney representing Subway, said it was “disappointing that this baseless lawsuit was not dismissed with prejudice.”

“While we obviously understand that the court has an obligation to accept the plaintiff’s allegations as true at the pleading stage of the case, the fact is that the plaintiff’s allegations are not true. Subway tuna is tuna,” Goodman wrote in an email to The Post. “We look forward to adjudicating Subway once the court is able to review the evidence, and we are very confident that Subway will enter judgment in each of the plaintiff’s claims.”

Subway’s tuna is not tuna, but a “mixture of different concoctions,” according to a lawsuit

In its dismissal motion, Subway argued that the tuna DNA tests were unreliable because the plaintiffs did not provide enough information about the lab’s methods. The chain has argued that only precise testing methods can detect tuna DNA after the fish has been cooked at high heat. DNA barcodes, commonly used in fish fraud cases, appear to be most effective at identifying a species from “fresh or living tissue” and not as reliable on finished or cooked products.

Two other media also analyzed Subway’s tuna. Inside Edition tested samples from three subway locations and found that each contained tuna. But the New York Times analyzed a sample and found that “there was no amplifiable tuna DNA,” although that may have been because the sample was processed in a way that testing equipment couldn’t identify the species.

Tigar was undeterred by Subway’s arguments about testing methods. Nothing under the current rule of law indicates that plaintiffs “must provide details of the means by which the falsehood was discovered,” the judge noted, citing precedent.

“The court finds that the complaint ‘as a whole’ is sufficiently specific as to what is wrong and why,” Tigar wrote. “It states that the description ‘tuna’ is incorrect, either because the products do not contain tuna and/or because there are ingredients that a reasonable person would not expect to find in an item labeled ‘tuna’. That’s enough.”

Amin now has 21 days to submit an amended complaint. If filed, the lawsuit will be plaintiff’s fourth against Subway and its tuna.

Amin was a party to the original January 2021 lawsuit alleging that Subway’s tuna was “a mixture of various preparations that do not represent tuna but were mixed together by the defendants to mimic the appearance of tuna.” The complaint was revised last June to qualify its claim that the tuna was not 100 percent sustainably caught skipjack and yellowfin tuna. Tigar dismissed the revised lawsuit in October, saying the plaintiffs failed to prove they purchased the tuna products based on false information from Subway.

From the moment the first lawsuit was filed, Subway has defied public opinion in both the court and the courts. The company has launched a website, SubwayTunaFacts.com, that attempts to provide transparency into the chain’s supply chain as well as expert opinions on the contents of Subway’s tuna.

The chain says it regularly tests its tuna.

“But you don’t have to take our word for it,” the company says on its website. “Applied Food Technologies is one of the few labs in the country capable of testing digested fish DNA, making it more accurate when testing processed tuna. AFT performed more than 50 individual tests on 150 pounds of Subway tuna for Inside Edition and confirmed yellowfin tuna and/or skipjack tuna in every sample.”

https://www.washingtonpost.com/food/2022/07/12/subway-tuna-lawsuit-amended/?utm_source=rss&utm_medium=referral&utm_campaign=wp_lifestyle The Subway tuna lawsuit still hangs over the head of the chain after the verdict

Chris Estrada

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