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Subway can be sued over its tuna, judge rules

"Our position has not changed – we serve 100% real, wild-caught tuna," Subway said in a post online about the ongoing lawsuit.

WASHINGTON — Editor's note: The related video above was published in June 2021.

A federal judge has ruled that a lawsuit focused on Subway's tuna sandwich ingredients can move forward for now. 

Last year, two California residents sued the sandwich giant accusing it of false advertising and claiming that the tuna served in its sandwiches wasn't actually tuna, something that Subway has vehemently and repeatedly denied, describing its products as "100% Wild-Caught Tuna."

Last week, U.S District Judge Jon Tigar ruled on the amended tuna sandwich lawsuit, which is the third one filed by Karen Dhanowa and Nilima Amin. Among its claims, the complaint asserted that DNA testing from 20 tuna samples in Southern California found chicken DNA, pork DNA and cattle DNA. 

The judge ruled it would be premature to accept the sandwich chain's argument that any non-tuna DNA discovered when testing its tuna products must come from the eggs in mayonnaise or from cross-contact with other ingredients in its stores.  

"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 in the July 7 filing.  

However, the judge rejected Amin's argument that "a reasonable consumer" would expect "100% tuna and nothing else" in their sandwich.

"Consumers understand that tuna salad is usually mixed with mayonnaise and that a tuna sandwich will contain bread...Without an affirmative misrepresentation, the Court will not suspend logic and find that a reasonable consumer would be misled by the mere fact that Subway’s tuna products include any ingredients beyond tuna," the ruling stated.

The judge also dismissed one of the plaintiffs, Dhanowa, from the case, explaining that the amended complaint doesn't include any info that she bought any Subway products or suffered any harm. 

"While the Court’s ruling is disappointing, we look forward to proving our tuna is tuna once and for all," Subway said in a "Tuna Q&A" update on its website. "There is no question that the lawsuit is completely meritless and the evidence will bear that out. Our position has not changed – we serve 100% real, wild-caught tuna."

This isn't the first time that a lawsuit raised questions about Subway's food. In 2020, Ireland’s Supreme Court ruled that bread sold by the fast food chain contained so much sugar it could not be legally defined as bread.

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