Subway Tuna Case: Federal Judge Allows Lawsuit Filed by Indian American Nilima Amin to Move Forward
- He, however, dismissed the claims of her fellow plaintiff Karen Dhanowa for not showing evidence to confirm whether she had paid for a tuna sandwich.
Certain parts of an amended lawsuit filed by an Indian American woman against Subway for serving “various concoctions” instead of tuna in its sandwiches and wraps, can move forward, a federal judge ordered earlier this month. With the ruling, U.S. District Judge Jon Tigar of the Northern District of California refused the restaurant chain’s request to dismiss the suit that alleges its tuna sandwiches and wraps contain absolutely no tuna.
The initial lawsuit was filed by Nilima Amin and Karen Dhanowa of Alameda County in California last January. They claimed that they were “tricked into buying food items that wholly lacked the ingredients they reasonably thought they were purchasing” based on Subway’s labeling, packaging and advertising. They sued the company for fraud, intentional misrepresentation, unjust enrichment and other claims under federal and state laws. They were seeking restitution, punitive damages and “disgorgement of all ill-gotten gains” from Subway, one of the top-grossing restaurant chains in the U.S.
Since the lawsuit was filed, Subway had asked Judge Tigar to dismiss the case, “saying in part that its tuna sandwich routinely includes other ingredients, such as mayonnaise (which contains eggs),” as reported by NPR. It also said that “a reasonable consumer watching a sandwich artist prepare their order would recognize that there’s a chance for cross-contact between various ingredients.”
But Tigar let Amin’s lawsuit continue. “Although it is possible that Subway’s explanations are the correct ones, it is also possible that these allegations refer to ingredients that a reasonable consumer would not reasonably expect to find in a tuna product,” Tigar wrote, according to The Washington Post.
However, he dismissed Dhanowa’s claims who hadn’t confirmed whether she had paid for a Subway tuna sandwich, reported NPR. He also dismissed part of Amin’s suit that he described as stating a “tuna salad, sandwich, or wrap contains 100% tuna and nothing else,” the NPR report added.
Amin and Dhanowa’s lawsuit cited a marine biologist who analyzed 20 samples of tuna offerings from 20 different Subway restaurants and found “no detectable tuna DNA sequences whatsoever” in 19 samples, as reported by NPR.
At the time of filing the lawsuit, Shalini Dogra, one of the attorneys for the plaintiffs, told The Washington Post that the lawsuit is based on independent lab tests of multiple samples taken from Subway locations in California, which show that the Subway 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.”
Meanwhile, Mark C. Goodman, an attorney representing Subway, told the media that it’s “disappointing that this meritless lawsuit was not dismissed with prejudice.” In an email to The Post he wrote: “While we obviously understand the Court is required to accept the plaintiff’s claims as true at the pleadings stage of the case, the fact is plaintiff’s claims are not true. Subway tuna is tuna. We look forward to vindicating Subway once the Court is able to consider the evidence and we are very confident that judgment will be entered for Subway on each of the plaintiff’s claims.”
Months after the lawsuit emerged in early 2021, The New York Times reported that testing of fish samples from three Subway locations found “no amplifiable tuna DNA” of the five tuna species for which it tested.
Subway however refuted The Times report. “The New York Times test results only show that the type of DNA test done by the unnamed lab wasn’t a reliable way of determining whether the sample was tuna or not,” the company says on its web page SubwayTunaFacts.com. The page aims to provide transparency on the chain’s supply chain as well as expert opinions on the content of its tuna. “If the test had confirmed the existence of a protein other than tuna, questions could have been raised. However, their “non-detect” conclusion really just means that the test was inadequate in determining what the protein was. In other words, it was a problem with the test, not the tuna.”
The chain says it tests its tuna regularly. “Subway tune is real tuna,” the website says. “The truth is, Subway uses wild-caught skipjack tuna regulated by the Food and Drug Administration (FDA),” it adds. “A favorite among sub lovers, our tuna is and has always been high-quality, premium and 100% real,” it continues.
“But you don’t have to take our word for it,” the company says on its site. “Applied Food Technologies is one of the only labs in the country with the ability to test broken-down fish DNA, which makes it more accurate in testing processed tuna. AFT conducted more than 50 individual tests on 150 pounds of Subway’s tuna for Inside Edition and confirmed yellowfin and/or skipjack tuna in every sample.”