Latest Subway ‘Tuna’ Filing Alleges DNA Test Shows Other Species

Consumers alleging Subway Restaurants Inc. misrepresents the “tuna” in its sandwiches and wraps filed a new amended complaint in a California federal court, this time alleging DNA testing shows that the products contain other fish species and animal products but no detectable tuna DNA.

Testing revealed DNA from chicken, cattle, and pork in the chain’s fare, making its “tuna” or “100% tuna” representations deceptive, according to the newest version of the proposed class complaint, filed Monday in the U.S. District Court for the Northern District of California.

Nilima Amin says she bought more than 100 Subway tuna products between 2013 and 2019 for health and weight loss purposes—all with the understanding and belief that she was eating only tuna.

But marine biologist Paul Barber performed DNA testing on tuna products from 20 different Subway restaurants in the greater Southern California region, the new complaint alleges. Of the 20 samples tested, 19 had no detectable tuna DNA sequences, the plaintiffs allege.

Additionally, all 20 samples contained detectable sequences of chicken DNA, 11 contained detectable sequences of pork DNA, and seven contained detectable sequences of cattle DNA, the plaintiffs allege.

The second amended complaint marks the plaintiffs’ third try at alleging claims against Subway and affiliated companies.

They initially alleged the Subway fare had no tuna at all.

Their first amended complaint changed the claims, alleging that the chain deceptively claims that the tuna is 100% sustainably caught skipjack and yellowfin.

Last month, Judge Jon S. Tigar dismissed the lawsuit, saying he “struggled” to find allegations of reliance on the marketing, but allowed the plaintiffs to file again.

“The plaintiffs’ latest attempt to state a claim against Subway is just as meritless as their prior attempts,” Mark C. Goodman, who represents the company, said in an email Tuesday.

After the court dismissed their amended complaint, “Rather than provide facts demonstrating reliance on the prior alleged misstatements, the plaintiffs pivot back to their ‘Subway tuna is not tuna’ claim that they previously abandoned,” Goodman said.

Subway “will bring another motion to dismiss these claims that are fatally vague, are based on flawed testing and misstate the contents of Subway tuna sandwiches, salads and wraps,” said Goodman, who is with Baker & McKenzie LLP in San Francisco.

Causes of Action: Fraud, intentional misrepresentation; negligent misrepresentation; unjust enrichment; California Consumers Legal Remedies Act; California False Advertising Law; California Unfair Competition Law.

Relief: Order declaring Subway’s conduct violated laws alleged; compensatory, statutory, and punitive damages; injunctive relief; attorneys’ fees and costs.

Potential Class Size: Unknown number of people in California class.

Attorneys: McNicholas & McNicholas LLP, Lanier Law Firm PC, and Dogra Law Group PC represent the plaintiffs.

The case is Amin v. Subway Rests., Inc., N.D. Cal., No. 4:21-cv-00498, amended complaint 11/8/21.