Subway Urges Judge to Toss Tuna Sandwich Class Action

Subway Tuna False Ad Class Action Lawsuit Overview:

• Who: Subway is asking the courts to throw out a class action lawsuit alleging its tuna sandwiches are not made from 100% tuna.
• What: The restaurant giant says the claims made in an amended complaint are “fatally vague, speculative and unsupported” and that the lawsuit in general is baseless.
• Where: The lawsuit is pending in California.

An amended class action lawsuit alleging that Subway’s tuna sandwiches aren’t made from 100% tuna is baseless and filled with “fatally vague, speculative and unsupported” claims, the restaurant giant has argued in a motion to dismiss.

Subway called on a California federal judge to dismiss the second amended complaint, saying that the lawsuit was “constantly shifting” showing its baselessness and that the amended complaint just reasserted claims that had already been dropped.

“The plaintiffs’ third attempt to state a claim against Subway … reverts to the plaintiffs’ original, baseless theory that Subway tuna products do not contain tuna — or, now, do not contain ‘only tuna’ — asserting the same consumer fraud claims they previously withdrew as unsupportable,” the restaurant argues. It adds that one top of having “no basis in law or fact” the claims “suffer from the fundamental deficiencies that plagued their prior pleadings, as the allegations that Subway tuna either is not tuna or fails to contain ‘only tuna’ are fatally vague, speculative and unsupported.”

Latest Claims Say Subway’s Tuna Products Do Not Contain Tuna DNA

Nilima Amin and Karen Dhanowa originally filed the lawsuit in January alleging that the sandwich chain intentionally made false and misleading representations about its tuna, arguing that its tuna products “do not contain tuna nor have any ingredient that constitutes tuna.”

In an amended complaint, the pair changed its tune, saying that Subway sold its tuna products “on the misrepresentation that the products were manufactured with 100% sustainably caught skipjack and yellowfin tuna,” but those claims were also dismissed with leave to amend.

In the latest claims, Amin and Dhanowa say that they tested Subway’s tuna products and they did not contain any tuna DNA. Subway has shot back, saying that “all that means is that the tests — of fully assembled Subway wraps, sandwiches and/or salads (not the actual tuna that is used as an ingredient in those menu items), under undisclosed conditions and based on undisclosed but surely questionable, methodologies — did not detect tuna DNA. It does not mean that Subway made a misrepresentation,” the company argues, adding the testing did not meet U.S. Food and Drug Administration standards.

“Critically, the SAC does not allege that the tuna products actually contain no tuna and do not allege what the tuna products are if they are not tuna,” Subway says, adding that it is obvious a sandwich would contain more than one ingredient.

It also says that it is widely accepted in the scientific community “that DNA testing is not an appropriate or scientifically valid method by which to test processed tuna protein”  because the tuna needs to be cooked to extreme temperatures, which renders the DNA undetectable.

The company also notes that its products are prepared on the same counter and with the same utensils as various other menu items and ingredients, which would lead to cross-contact with other ingredients, explaining the chicken DNA that was found.

A spokesperson for Subway told Law360 that Subway tuna was high-quality, wild-caught, 100% tuna, and that the plaintiffs in the lawsuit had filed three “meritless complaints, changing their story each time.”

“The second complaint was rightfully dismissed by a federal judge,” the spokesperson said. “Our legal team has reviewed the plaintiffs’ newly amended complaint and has filed a second motion to dismiss this reckless and improper lawsuit. The fact remains that Subway tuna is real and strictly regulated by the FDA in the U.S. and other government entities around the world.”

Do you think Subway should have to face the claims its tuna sandwiches aren’t 100 percent tuna? Let us know your thoughts in the comments!

The plaintiffs are represented by Emily Rose Pincin, Jeffrey Robbin Lamb and Patrick McNicholas of McNicholas and McNicholas LLP and Shalini Dogra of Dogra Law Group.

Subway is represented by Mark Craig Goodman, Alexander G. Davis and Anne Kelts Assayag of Baker McKenzie.

The Subway Tuna False Ad Class Action Lawsuit is Nilima Amin et al. v. Subway Restaurants, Inc. et al., Case No. 4:21-cv-00498, in the U.S. District Court for the Northern District of California.

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