Yet another version of the Subway tuna lawsuit has emerged, please make it stop [Updated]

The brand commended the dismissal of the "reckless and improper lawsuit."

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Subway tuna sub sandwich
Photo: Jörg Carstensen/picture alliance (Getty Images)

Update, November 12, 2021: Just like the legendary phoenix rising from the ashes, the tuna lawsuit rises again, this time, in a slightly modified form. Reuters reports that the same two plaintiffs from the original tuna lawsuit, Karen Dhanowa and Nilima Amin, have filed a third version. They claim that lab testing has shown that the tuna includes animal proteins such as pork, chicken, and cattle, which is a misrepresentation of their advertised “100% tuna.”

The class action lawsuit was filed in the federal court in San Francisco. Subway, in response (probably in a weary voice), said in a statement, that it’s seeking to dismiss the “reckless and improper” lawsuit. It also said that the plaintiffs have “filed three meritless complaints, changing their story each time.”

Subway followed the statement saying that its “high-quality, wild-caught, 100% tuna” was a strictly regulated product both in the U.S. and across the world. We’re all wondering just how much longer this could possibly go on before someone finally gives up.

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Update, October 8, 2021: Well, the Subway tuna lawsuit saga’s come to a conclusive end: Restaurant Business Online reports that a judge threw the whole thing out. The judge in the case said that the plaintiffs failed to prove that Subway’s tuna wasn’t indeed tuna, and that there wasn’t enough proof of misrepresentations or fraudulence on Subway’s part in regards to the sandwich ingredient.

A Subway spokesperson said, “We commend the Court for dismissing the reckless and improper lawsuit surrounding Subway’s tuna,” probably with an exasperated sigh of relief.

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Update, July 14, 2021: Sounds like Subway’s done dealing with the tuna bullshit, because now, they’ve even got a website for it: Subwaytunafacts.com. My feeling is that it exists so that when anyone at the company is asked about the tuna (yet again), all they have to do is say, “Go to ‘subwaytunafacts dot com’ and all your questions will be answered there.”

The site specifically cites the New York Times article referred to in the original post below, and the website copy answers questions like, “Has anyone else ever tested Subway’s tuna?” and, “What about the allegations that Subway’s tuna is processed beyond recognition, or may contain other kinds of fish protein?” So at this point, my guess is that they won’t spend any more time running their defensive game, and just use the site as a default shield to keep the constant questions at bay.

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Update, June 23, 2021: After the New York Times Subway tuna story broke over the weekend, Subway has been following up with outlets who shared the news in an attempt to provide more context regarding the lawsuit that instigated the Times investigation. Here is what a Subway spokesperson wrote in an email to The Takeout:

After being presented with information from Subway, the plaintiffs abandoned their original claim that Subway’s tuna product contains no tuna. However, they filed an amended complaint that now alleges our tuna is not 100% tuna and that it is not sustainably caught skipjack and yellowfin tuna. Just like the original claim, the new claims have absolutely no merit. In fact, the amended complaint does not remedy any of the fundamental flaws in the plaintiffs’ case and it is disappointing that they have elected to continue to pursue these baseless claims.

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Technically, there’s a slight chance that this is true: while the lab could not identify tuna DNA within the Subway sandwiches sent for testing, a spokesperson for the lab noted that this might be because “it’s so heavily processed that whatever we could pull out, we couldn’t make an identification.” The other possibility, of course, is that there’s just no tuna in there. And no DNA test can indicate whether the fish, if it’s indeed present in the sandwich, was sustainably caught, so those claims within the lawsuit open up a whole other can of worms. It’ll be interesting to keep tabs on this case as it continues to unfold.

Original post, June 21, 2021: In all of the time I’ve spent writing and reading about food, I’ve never seen any restaurant chain embroiled in as much trouble as Subway is right now. It’s clear that things are just getting worse for the chain’s franchisees, and it’s hard not to feel bad for small business owners trying to make a living.

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But it gets worse. There was a lawsuit filed earlier this year regarding Subway’s tuna. It alleged that what Subway served wasn’t actually tuna, but rather a mixture of various fish. Subway vehemently denied these charges. Initially, I chalked it up as a frivolous lawsuit, but now I’m not so certain. The New York Times conducted an independent test of Subway’s tuna and the results are quite puzzling.

In an email to The New York Times, the company said, “Subway’s tuna sandwich ranks among our guests’ favorite sandwiches.” I’ve had Subway’s tuna before, and, honestly, it’s fine. It’s a run-of-the-mill tuna sandwich and scratches that itch if that’s what you’re in the mood for. But after the lawsuit, the author of the article, Julia Carmel, was curious, so she decided to get some sandwiches tested at an independent lab for tuna content.

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Carmel gutted five footlong subs that contained nothing but tuna, sourced from multiple Subway locations in Los Angeles, and sent the contents off to a lab that specializes in testing fish. (The lab wished to stay anonymous for the article so as not to endanger any possible future business with Subway.) Carmel ordered a $500 PCR test, which quickly makes a massive amount of copies of a specific DNA sample (we’re talking up to billions). She wanted to determine whether the samples contained one of five tuna species.

While the U.S. Food and Drug Administration defines 15 species as tuna via the Seafood List, its guide to acceptable market names for seafood, Subway’s sourcing statement says it uses only two varieties in its sandwiches: skipjack and yellowfin tuna. Those should be identifiable as Katsuwonus pelamis and T. albacares.

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Former Subway employees confirmed that the fish came in pouches with flakes soaking in a brine solution, much like any canned tuna you’ve probably eaten, and it’s mixed with only mayonnaise on-site at each restaurant.

When the test results came back, the lab sent Carmel an email that read, “No amplifiable tuna DNA was present in the sample and so we obtained no amplification products from the DNA. Therefore, we cannot identify the species.” What have I been eating this whole time?

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A lab spokesman clarified the results. “There’s two conclusions,” he said. “One, it’s so heavily processed that whatever we could pull out, we couldn’t make an identification. Or we got some and there’s just nothing there that’s tuna.”

That being said, there’s some big complications with testing fish like this. Once tuna has been cooked, as it is before it’s shipped to restaurants, its protein becomes denatured, which means identifiable characteristics have been likely erased from the meat, making it nearly impossible to identify. So it’s possible that the fish is indeed tuna. Whether or not it’s skipjack or yellowfin, as declared, is harder to determine. This gets into issues of labeling (which we’ve found can be fishy in and of itself).

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Personally, I’m inclined to think it’s tuna. But even so, this is just another issue chipping away at the public perception of Subway, and problems just keep adding up for the chain. Give the New York Times piece a read, as it also goes into fishing practices and how tuna is processed along the way to restaurants, and... I’ll probably be making my own tuna sandwiches from now on.