The Subway tuna lawsuit has been dismissed

(AP Photo/Mark Lennihan, File)

This became a big story when it broke in January of this year.

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 to The Washington Post.

Today a judge dismissed the lawsuit but without ruling on the merits of the claim:

U.S. District Court Judge Jon S. Tigar’s ruling said nothing about Subway’s tuna. Instead, the judge ruled that the plaintiffs had not met a required legal standard: that they purchased the products based on misrepresentations by Subway.

“To meet the heightened pleading standard, plaintiffs still need to describe the specific statements they saw and relied upon, when they saw the statements, and where the statements appeared. Because they fail to do so, the complaint does not satisfy the . . . standard,” Tigar noted in his ruling.

So is there tuna in a Subway tuna sandwich? Inside Edition tested three samples back in February and all three contained tuna.

The NY Times repeated this same stunt in June and their samples couldn’t be identified. However, there were some reasons why that might be expected.

Finally, after more than a month of waiting, the lab results arrived.

“No amplifiable tuna DNA was present in the sample and so we obtained no amplification products from the DNA,” the email read. “Therefore, we cannot identify the species.”

The spokesman from the lab offered a bit of analysis. “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.”…

With all testing, there are major caveats to consider. Once tuna has been cooked, its DNA becomes denatured — meaning that the fish’s characteristic properties have likely been destroyed, making it difficult, if not impossible, to identify.

Perhaps the most telling fact is that the people who filed the lawsuit initially claiming there was no tuna in the tuna sandwiches revised their claims in June:

Even the plaintiffs have softened their original claims. In a new filing from June, their complaints centered not on whether Subway’s tuna was tuna at all, but whether it was “100% sustainably caught skipjack and yellowfin tuna.”

This is a very different claim from the one that initially garnered all the headlines. Despite the initial claims not being true, Subway did a major campaign to promote its new sandwiches which I suspect was about countering the negative press of the tuna story. You’ve probably seen the commercials featuring a slew of celebrities including Tom Brady.

Finally, Bloomberg Law is reporting that the attorneys make take another shot at this lawsuit. I’m actually wondering why Subway isn’t suing them for making false claims. Maybe they don’t want to give any more oxygen to this but nothing would put this to rest more completely than seeing the plaintiffs forced to admit they didn’t have any proof of those initial claims.