Subway Can Officially Be Sued Over Tuna Scandal

A lawsuit against Subway over its tuna can move forward, a federal judge ruled. Nilima Amin of Alameda County, California argues that Subway is misleading customers by claiming that the tuna offered for its tuna subs contains “tuna” and “100% tuna.” Subway asked U.S. District Judge Jon Tigar to dismiss the case, but he ruled against them.

Amin’s lawsuit includes a study from a marine biologist who could find “no detectable tuna DNA sequences whatsoever” in 19 of 20 samples from different Subway restaurants, reports NPR. Instead, the samples found other types of animal DNA, including chicken and pork, according to the lawsuit. Subway argued that its tuna sandwich does include other ingredients like mayonnaise, which contains eggs. The chain said a customer watching an employee prepare the sandwich should understand that there could be contact with other ingredients.

Tigar said the facts in the case were not settled and allegations “refer to ingredients that a reasonable consumer would not reasonably expect to find in a tuna product.” This means the case centers on what exactly a consumer expects from Subway when they order a tuna sandwich. Do they expect to be served a tuna sandwich that only contains tuna, or does the average consumer know there is a chance that the tuna isn’t “100% tuna”?

Amin asked for a jury trial and class-action status for the lawsuit reports NPR. She accused Subway of fraud, false advertising, and unfair competition. She is asking for restitution, punitive damages, and “disgorgement of all ill-gotten gains.”

“Subway serves 100% tuna,” a Subway spokesperson told NPR. “We are disappointed the Court felt it couldn’t dismiss the plaintiffs’ reckless and improper lawsuit at this stage.”

However, Tigar did dismiss some of the claims in the lawsuit. The California federal judge dismissed claims from another plaintiff who did not confirm if she paid for a Subway tuna sandwich. He also dropped the part of the suit he said noted a “tuna salad, sandwich, or wrap contains 100% tuna and nothing else.” Amin has three weeks to respond to the dismissals before the case moves on.

Subway’s tuna sandwich scandal began early last year when Amin filed her lawsuit. The New York Times commissioned its own testing of fish samples from three Subway locations and said there was “no amplifiable tuna DNA” in the samples. Subway insisted the Times‘ report was false and the company launched a website called SubwayTunaFacts.com to combat the controversy.

“Subway tuna is real tuna,” the website reads. “That’s right. The truth is, Subway uses wild-caught skipjack tuna regulated by the Food and Drug Administration (FDA). A favorite among sub lovers, our tuna is and has always been high-quality,premium, and 100% real.”

The tuna scandal also came a few months after the viral news from Ireland that a court there ruled Subway bread couldn’t legally be considered bread. The Irish court cited the Value-Added Tax Act of 1972, which said tax-exempt bread couldn’t have sugar, fat, and bread improver over 2% of the weight of flour. Subway’s recipe includes sugar that makes up 10% of the weight of the flour, the court said.