EXTRA CHEESE: ‘Anything But Tuna’ Subway Scandal

Today we are going to cover a news story that a lot of people sent in to us. And I just want to remind anyone listening that they can send in topic suggestions - both for our regular Dietetics After Dark episodes and for Extra Cheese. We genuinely do want to know what you want to hear about! So feel free to email any episode ideas to dieteticsafterdark@gmail.com. This story was sent in to us by Ani, Earl, Leah, Natalie and Rachel.

It is somewhat of an update on a story that we previously covered...about Subway restaurants. So apparently there have been some claims that the Subway Tuna Sandwich is “anything but tuna”...and I know you have heard about this one Sarah, but what are your initial thoughts?

Before I get into this, the sources that I used for this episode include an article by Tim Carman at the Washington Post called “Subway’s tuna is not tuna, but a ‘mixture of various concoctions,’ a lawsuit alleges”; as well as articles by The Associated Press and The Canadian Press. And as always, you can find the links to these sources in our show notes.

Subway is currently under mass speculation after two residents of the San Francisco Bay area, named Karen Dhanowa and Nilima Amin, are suing Subway, after making the claim that the tuna that they serve is in fact “anything but tuna” (The Associated Press, 2021). As we know from previous episodes, labelling a product as something that it is not is considered food fraud, and could have some serious repercussions if found to be true. The plaintiffs are suing for fraud, unjust enrichment, intentional misrepresentation and a few other things that weren’t listed in the article (Carman, 2021).

These two plaintiffs, who filed their lawsuit in the last week of January, state that Subway is capitalizing “on the premium price consumers are willing to pay for tuna”. They apparently had samples of the tuna analysed and claim that the results indicate that the sandwich filling is a mixture of other things created to give the appearance of tuna.  Now keep in mind that the actual ingredients have not been disclosed by the plaintiffs. Their lawyer DID however mentioned that the ingredients aren’t even made of fish, so if that is true, that’s concerning.

But my first thought is that it must be canned chicken. TBD.

Were you a Jessica Simpson fan? She had the best clap back on Twitter to this story. I don’t know if you remember but she was made fun of tremendously in 2003 for confusing tuna fish with chicken when she was eating Chicken of the Sea brand tuna on her reality TV show Newlyweds. She tweeted a Today Show headline reporting this story with the caption “It’s okay Subway. It IS confusing”.

Back to the story - The 2 plaintiffs’ lawyers are trying to push the claim to get certified as a class action lawsuit. This would mean that anyone who bought Subway Tuna sandwich wraps from any Subway in California from January 21, 2017 to now could join in. Based on our last Subway episode, we know that the tuna sandwich is one of their most popular sandwiches, so this could potentially be a huge class action lawsuit.

Subway is obviously not taking this news well. They have released a statement saying that they will “vigorously defend” themselves, and have implied that the law firms representing the plaintiffs are a part of a trend where they will go up against the food industry to make a name for themselves (The Associated Press, 2021). So I hope for the sake of these plaintiffs that their lawyers are doing this work pro bono, because going up against a massive brand like Subway when your lawyers have ulterior motives might run you pretty dry.

And Subway has said that they will “fight these claims through all available avenues if they are not immediately dismissed”. And I would want to ensure that I had a rock solid case if I were one of these plaintiffs becausssse something else happened a bit earlier this January also involving Subway.

A few weeks ago, just before this tuna fiasco made headlines, the Ontario appeals court RULED that Subway can move forward with a $210 million dollar defamation suit against the Canadian broadcast news company, CBC. This lawsuit is over a 2017 Marketplace report that was initially conducted by Trent University in Peterborough, ON that analyzed the amount of chicken in Subway chicken sandwiches. I couldn’t find the exact lab results, but they claimed that the product was half chicken and half soy. The results of this report were apparently “flawed” and “inaccurate” and impacted the restaurant chain’s image, reputation and finances. It turns out that no more than 1% of the chicken in their chicken sandwiches is made up of soy.

Back in 2019, Justice Edward Morgan sided with CBC on this case and ordered Subway to pay over ½ million dollars in fees and legal costs to CBC. On this appeal that just happened, Subway claimed that free expression does not outweigh the harm caused by defamatory statements. And they won the appeal (The Canadian Press, 2021).

Now I love CBC. The article where this information came from was even from CBC. But I do kinda agree with this appeal decision. What do you think?

The media should be held responsible for making false claims in their reporting. I think that the news in general would look a lot different if every story or report released had to be based on fact; ESPECIALLY those on food & nutrition.

Anyways, it will be interesting to see what happens with this chicken case; but also this tuna case. I just hope that the plaintiffs claims are fully substantiated before they make this a whole class action thing.