When eating sandwiches, people don’t normally call into question whether the bread is actually bread, and hopefully, customers don’t need to consider what the ingredients are made of–people know what they like and buy what they know.
A recent court case and subsequent media investigation, however, calls into question whether Subway’s tuna, found in the subs so beloved to many, is actually tuna.
As reported by The Guardian, the whole thing started when two Californian Subway customers, Karen Dhanowa and Nilima Amin, filed a lawsuit in January 2021, claiming that Subway’s tuna sandwiches “are made from anything but tuna.”
Instead the plaintiffs argued that the mixture was blended together from various concoctions to give the look and feel of tuna. According to an article in The Cut, they believed they “were tricked” into spending more for tuna, which was healthier than other meat products.
A New York Times reporter launched an independent study, buying tuna sandwiches from three Subway stores across Los Angeles. The tuna was removed, frozen and shipped to a commercial food testing lab, where the samples were run through a PCR test, which detects genetic material, trying to find five types of tuna.
The New York Times reported back that the lab said that “no amplifiable tuna DNA was present in the sample and so we obtained no amplification products from the DNA,” and “therefore, we cannot identify the species.”
The article posited that either the tuna was “so heavily processed that whatever we could pull out, we couldn’t make an identification,” or “there’s just nothing there that’s tuna.”
Subway’s response to The New York Times test is that tuna DNA isn’t always detectable after it has been cooked, and that the results don’t, in any way, imply that its tuna is not real.
USA Today independently fact checked the New York Times test and supported Subway’s claim that “tuna DNA becomes denatured once it is cooked, making it difficult to identify a fish's characteristics.” In general, the USA Today investigation concluded that the New York Times story was missing context.
Lorri Christou, vice president of public relations, communications and public affairs at Subway, told USA Today that “the report does not show there is not tuna in Subway's tuna, but that the testing could not confirm tuna, which is what one would expect from a DNA test of denatured proteins.”
In response, Subway also launched a website called Subwaytunafacts.com defending its tuna sub, stating that “Subway uses wild-caught skipjack tuna regulated by the Food and Drug Administration (FDA)” and “our tuna is and has always been high-quality, premium and 100% real.”
Additionally, Inside Edition ran similar tests based on Subway tuna samples, this time from New York, and a Florida-based lab, Applied Food Technologies, confirmed the presence of tuna.
On June 7, the plaintiffs altered their claims, removing the “no tuna” claim but still protesting that Subway’s labeling was “malicious” and that the marketing and advertising of its tuna is false and misleading. Now the case is really focused on whether the tuna is “100% sustainably caught skipjack and yellowfin tuna.”
Reuters reported that at the end of July 2021, Subway asked the court to throw out the case, calling the new claims “frivolous” and damaging to the thousands of franchisees who count tuna subs as a best-selling product. Subway said of the July court filing that the plaintiffs had "doubled down on their destructive behavior with new, equally unsupportable claims.”
It isn’t the first time that Subway ingredients have been forensically analyzed in court for financial gain. In October 2020, Irish courts ruled that Subway in Ireland could not say that their sandwiches were made of bread. A Subway franchisee had taken the issue to court arguing that it should have to pay VAT because its product (bread) was a food staple and liable to 0% VAT. The courts ruled, however, that Subway ‘bread’ contained too much sugar to be technically classified as bread.
According to Irish law, for bread to be a “staple product” and not therefore liable to pay VAT, the sugar content “shall not exceed 2% of the weight of flour included in the dough”–Subway’s bread was found to have a 10% ratio in this instance.
Both the ongoing U.S. court case against Subway’s tuna and the one in Ireland about its bread, is really just a subjective issue around how far people are willing to see the raw ingredients of flour and freshly-caught fish be modified before it reaches their table–and how far the staples of bread and fish can be considered healthier than other more characteristically “unhealthy” food products, if they are heavily processed.
Subway can be found in about 37,500 locations globally, with more than 24,600 based in the U.S. and Canada and the continuing court case is Amin et al v Subway Restaurants Inc et al, U.S. District Court, Northern District of California, No. 21-00498.
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August 10, 2021 at 09:44PM
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