National Post (National Edition)
Subway's tuna is not tuna, lawsuit alleges
Sandwich chain insists its fish is genuine
Subway describes its tuna sandwich as “freshly baked bread” layered with “flaked tuna blended with creamy mayo then topped with your choice of crisp, fresh veggies.” It's a description designed to activate the saliva glands — and separate you from your money.
It's also fiction, at least partially, according to a recent lawsuit filed in U.S. District Court for the Northern District of California. The complaint alleges the ingredient billed as “tuna” for the chain's sandwiches and wraps contains no tuna.
A representative of Subway said the claims are without merit. Not only is its tuna the real deal, the company says, but it's wild-caught, too.
The star ingredient, according to the lawsuit, is “made from anything but tuna.” Based on independent lab tests of “multiple samples” taken from Subway locations in California, the “tuna” is “a mixture of various concoctions that do not constitute tuna, yet have been blended together by defendants to imitate the appearance of tuna,” according to the complaint. Shalini Dogra, one of the attorneys for the plaintiffs, declined to say exactly what ingredients the lab tests revealed.
“We found that the ingredients were not tuna and not fish,” the attorney said in an email.
Two plaintiffs are identified in the complaint: Karen Dhanowa and Nilima Amin, both residents of Alameda County in the Bay Area. But attorneys for Dhanowa and Amin hope to get their claim certified as a class action, which could open the case up to thousands of Subway customers in California who purchased tuna sandwiches and wraps after Jan. 21, 2017.
Dhanowa and Amin are suing Subway for fraud, intentional misrepresentation, unjust enrichment and other claims under federal and state laws. Among other accusations, the plaintiffs argue they “were tricked into buying food items that wholly lacked the ingredients they reasonably thought they were purchasing” based on Subway's labelling, packaging and advertising.
What's more, the plaintiffs argue, Subway is “saving substantial sums of money in manufacturing the products because the fabricated ingredient they use in the place of tuna costs less money.” They argue they paid premium prices for an ingredient that they prize for its health benefits (although the government suggests certain people limit their intake of tuna because of mercury contamination). In suburban Washington, for example, the price of a foot-long tuna sandwich at a Subway outlet costs US$7.39. The same size coldcut combo sandwich, by contrast, runs US$6.19.
“Consumers are consistently misled into purchasing the products for the commonly known and/or advertised benefits and characteristics of tuna when in fact no such benefits could be had, given that the products are in fact devoid of tuna,” the lawsuit claims.
According to Subway's nutritional information page on its website, the tuna salad for its sandwiches contains flaked tuna in brine, mayonnaise and an additive to “protect flavour.” A spokeswoman for Subway said the nutritional information is up to date.
“Tuna is one of our most popular sandwiches. Our restaurants receive pure tuna, mix it with mayonnaise and serve on a freshly made sandwich to our guests,” said Katia Noll, senior director for global food safety and quality at Subway.
Over the years, Subway has been a frequent target for lawsuits, some more serious than others.
In 2013, plaintiffs in a class-action complaint accused the chain of selling US$5 foot-long sandwiches that were only 11 to 11 1/2 inches long. (The U.S. Court of Appeals for the 7 th Circuit in Chicago eventually threw out a settlement in the case, calling it “utterly worthless.”) The sandwich chain recently had to defend its bread after Ireland's Supreme Court ruled that, as part of a protracted legal and tax battle, Subway's hoagie-style rolls did not meet the country's definition of a staple bread.
Over the years, franchisees have sued the company, too, claiming Subway's regional structure and arbitrary inspection process unfairly pushed some owners out of business. In 2017, Subway filed a lawsuit of its own against the CBC, arguing that the Canadian public broadcaster defamed the chain in a report that claimed the company's poultry products contained only 50 per cent chicken DNA. The Ontario Superior Court originally dismissed Subway's lawsuit, saying the CBC's investigation met the “public interest test,” but Ontario's top court recently set aside that ruling, saying the untested claim was far from frivolous and deserved a thorough airing.
The plaintiffs in the current case are seeking compensatory and punitive damages as well as attorneys' fees.
They also want Subway to end its alleged practice of mislabelling its tuna sandwiches and surrender profits it earned from the practice. The plaintiffs have retained the services of the Lanier Law Firm, a firm with offices in several cities, including Los Angeles.