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The Courts

Judge Rules Subway Can Be Sued Over Claims That Its Tuna Sandwiches Contain Other Fish Species or Animal Products (nbcnews.com) 80

Posted by msmash from the don't-mess-with-tuna dept.
Sandwich chain Subway can be sued over claims it is allegedly misleading customers when it says its tuna products are in fact "100% tuna," a federal judge in California said Monday. From a report: The suit, originally brought by Oakland-area resident Nilima Amin in January 2021, claims Subway's tuna "partially or wholly lack tuna as an ingredient" and "contain other fish species, animal products, or miscellaneous products aside from tuna." The claims are based on testing performed at a UCLA marine biology laboratory. Subway has responded by saying any product that is not tuna in its tuna products would most likely be the result of cross-contact occurring as one of its employees prepares a sandwich.
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Judge Rules Subway Can Be Sued Over Claims That Its Tuna Sandwiches Contain Other Fish Species or Animal Products More

Judge Rules Subway Can Be Sued Over Claims That Its Tuna Sandwiches Contain Other Fish Species or Animal Products

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  • In Ireland... (Score:5, Funny)

    by nospam007 ( 722110 ) * on Monday July 11, 2022 @06:15PM (#62694558)

    ...their bread is considered pastry, because of the high sugar content.

    So perhaps they are selling mystery-crab-cakes and not sandwiches.

    • Re:In Ireland... (Score:5, Informative)

      by timeOday ( 582209 ) on Monday July 11, 2022 @06:33PM (#62694590)
      It's not just Subway. In the vast majority of places you can buy seafood, a whole lot of it is mislabeled.

      "A Guardian Seascape analysis of 44 recent studies of more than 9,000 seafood samples from restaurants, fishmongers and supermarkets in more than 30 countries found that 36% were mislabelled, exposing seafood fraud on a vast global scale."

      • Re: (Score:3)

        by AmiMoJo ( 196126 )

        I remember when the horse meat scandal broke. Horse meat mislabelled as beef.

        We used to go to this pub Friday lunchtime at work. The lasagne was excellent. The week the scandal broke they gave us a plastic card explaining that they had made sure they were using real beef. The lasagne was never as good after that.

        • I remember when the horse meat scandal broke. Horse meat mislabelled as beef.

          As someone who's eaten horse, I would say it's hard to mistake it for beef. While in Brazil, a scandal broke out about labeling ground whale as ground beef. I don't know if I ate whale during that time.

          We used to go to this pub Friday lunchtime at work. The lasagne was excellent. The week the scandal broke they gave us a plastic card explaining that they had made sure they were using real beef. The lasagne was never as good after that.

          Ostrich (if you can find it) has beef-like taste and appearance. Using mild Italian sausage (made of pork) also adds depth of flavor. Even the feed of the cattle affects the final flavor (I can't stand the flavor of chestnut fed beef).

    • it's considered sawdust, because of the taste.

    • Probably most American bread would be classified that way.

      A brioche bun is a pastry due to the added fat. Is that really an indictment of the French?

      (Also... a tomato is a berry and a strawberry isn't.)

  • meaningless but, let's talk 100% beef hotdogs (Score:5, Interesting)

    by zephvark ( 1812804 ) on Monday July 11, 2022 @06:38PM (#62694598)

    As I recall, the bio lab was asked to run DNA tests on a Subway tuna salad. The tuna has been heavily cooked and pressure-canned, so there's not going to find much recognizable DNA, even avoiding the problem of contamination by mayonnaise and whatever other things they put in that. It's just some crazed nuisance lawsuit.

    On the other hand, why don't you check out the ingredients lists on the "100% beef" hotdogs at the grocery? Go on! Check every single brand! Almost all of them contain high-fructose corn syrup, for some reason. That's definitely not beef and, I didn't want sugared hotdogs.

    You can always get Hebrew National "100% beef" hotdogs. They claim to be held to a higher authority! I'm not sure how high this authority might be but, they do leave out the HFCS and just add TVP (texturized soy protein) instead. Somehow, this tube-shaped meatloaf can legally be described as "100% beef", apparently on the grounds that your sausage does contain some beef. We're not sure how much, but the beef part is definitely 100% beef.

    • Vienna Beef hotdogs are just beef and seasonings. A small amount of sugar in sausage seasoning isn't that uncommon.

    • Re: (Score:2, Redundant)

      by Joce640k ( 829181 )

      On the other hand, why don't you check out the ingredients lists on the "100% beef" hotdogs at the grocery?

      I think what they're claiming is "0% pork, 0% chicken, 0% horse".

      Obviously there will be more than beef in the ingredients. You wouldn't want them otherwise.

    • As long as it's 0% actual dog-meat ... (Score:1)

      by Anonymous Coward

      ... I'm good.

    • Re: (Score:1)

      by fermion ( 181285 )
      So it is 99.6% by volume or mass. And 0.01% mouse dropping and 0.01% human appendage. No is paying for five-9s. I seem to recall subway being pretty open to the fact a lot of its meat is turkey based.

      In any case, there have been many DNA tests one found in restaurants. Almost always the finding is the fish is not what is bought, but a cheaper variety. Back in the day before tilapia was popular, places served tilapia instead of a more expensive variety. The restaurants that are serving the actual fish adve

    • Re:meaningless but, let's talk 100% beef hotdogs (Score:5, Informative)

      by bill_mcgonigle ( 4333 ) * on Monday July 11, 2022 @07:37PM (#62694742) Homepage Journal

      It means beef is the only animal. It's for people who don't eat pork or whatever. 100% beef ingredients-wise would be a steak. It's not a steak so you can know it doesn't mean that.

      Hebrew National is explicitly Kosher. That means the cattlebeast is hoisted up by it's legs (usually fracturing bones, tendons, and ligaments) then has its throat slit until it bleeds to death. God commands this of the Hebrew tribe.

      The other beef brands use a bolt to the head that instakills the standing animal. That allows for higher grade meat at lower cost.

      But in any case they're 90% fat plus flavor. Treat them like a meat treat, not a meal. I make sure to get the pork blend to be safe.

      • Re: (Score:2)

        by alantus ( 882150 )
        For animal products to be kosher, the animal must be healthy, can't have died of natural causes or killed by other animals, and it must be killed humanely, with a single cut that bleeds them to death quickly.
        Fracturing the animal's bones before death is unnecessary suffering, a place that makes animals suffers like this wouldn't be certified as kosher.
    • I have never trusted 100% beef hotdogs. When you see uncooked ground beef, it's red. When you cook it, it turns grey... Except for the beef hotdogs which remain red. Beef doesn't behave like that.

      • I have never trusted 100% beef hotdogs. When you see uncooked ground beef, it's red. When you cook it, it turns grey... Except for the beef hotdogs which remain red. Beef doesn't behave like that.

        Hawaii's red hot dogs use heart and other organ meat, plus tons of paprika. Nitrates, nitrites, and other salts also help keep meat red after cooking (look at pastrami or corned beef).

      • The red color is the result of curing with nitrates/nitrites, whether they're from man-made sources or celery powder.

        There's some legitimate health reasons for avoiding cured meats, but it has nothing to do with the color.

    • Check every single brand! Almost all of them contain high-fructose corn syrup, for some reason.

      "100% beef" does not mean no additives, it means it is not mixed with pork. I've never seen anyone misread that statement in such a way to consider that it applies to all additives. Shit you couldn't make a 100% beef hotdog if you wanted to, you need several additional ingredients to bind a sausage into that form.

      • I was thinking the same thing. If you were expecting no other ingredients you're missing the point of it being a sausage. Sausage tastes good specifically BECAUSE there are spices and other ingredients ground up with the meat.

      • I feel that if they just wanted to say, "no pork!" they could have said, y'know, "no pork!" Also, a sausage doesn't need to be "bound", although I understand that we're talking "skinless" sausages, which are plenty weird. But, yes, I get that a sausage should be largely fat with finely-ground meat and seasonings. I don't really get the high-fructose corn syrup but, Americans can't seem to avoid adding sugar to everything. Also, inventing low-fat turkey dogs, which is an offense before man and God.

        I feel tha

  • According to some research, only around 50% of their chicken products are actual chicken meat. Most of the rest, around 42%, is soy.

  • ...is today's tuna. Add a little mayo, chopped onions, and sawdust -- who can tell the difference?

    • Re: (Score:2)

      by PPH ( 736903 )

      And last week's bugs are yesterday's chicken. Hey, they've all got wings.

    • Food beyond compare.

      Food beyond belief.

      Mix it in a mincer and pretend it's beef.

      Kidney of a horse.

      Liver of a cat.

      Filling up the sausages with this and that.

  • In your best Arnie impression... (Score:1)

    by Anonymous Coward

    "It's not a tuna!"

  • subway beat the footlong case so they may win this

    • Re: (Score:2)

      by LostOne ( 51301 )

      Presumably showing that they purchased sufficient tuna from suppliers would be enough to shift the complaint to their supplier(s) if there is even any claim left. Especially when combined with the deleterious effect cooking and canning have on DNA, the very limited sample size that was tested, and the non-lab conditions before getting to the lab for testing.

    • It is a technical lawsuit. So was the "footlong" lawsuit. Many food definitions do not mean what people may expect.

      If you buy a can of tuna labeled 100% tuna, are you liable if it is not accurate? That is part of this.

      The law also allows "levels of natural or unavoidable defects in foods that present no health hazards for humans." to be classified as 100% the food, and with many foods regulators explicitly state maximum values, up to x% insect parts, up to x% rodent, up to x% other parts of a plant. Conce

      • If you buy a can of tuna labeled 100% tuna, are you liable if it is not accurate? That is part of this.

        If you put a guarantee on your menus/promotional items and haven't run a due diligence process on your suppliers, you ain't gettin' much sympathy from me...

  • 100% Tuna(tm), just like McDonalds did with 100% Pure American Beef

  • China (Score:2, Flamebait)

    by WindBourne ( 631190 )
    Subway very likely buys their Fish from Chinese fishing boats. If so, then that 'tuna' is any number of fish, as well various other items, including rats.

  • This lawsuit is legal harassment (Score:5, Insightful)

    by Whateverthisis ( 7004192 ) on Monday July 11, 2022 @07:41PM (#62694758)
    So this is the third time these two have filed this lawsuit against subway.

    Basically when you cook tuna, which is often done twice; once in a tort oven at the processor and again in a tort oven post canning (the second cooking guarantees the elimination of any bacterial contamination), you've effectively destroyed the DNA. You can't run PCR or any other detection methods, all of which require amplification and DNA amplification requires heat, when the DNA has been heated it's denatured, which effectivly means you've separated the two strands. The genomic material is there, but it's not longer in a format that scientific detection methods can detect easily.

    So the plaintiffs botched the lawsuit because they couldn't easily describe the specific statements Subway made about it's tuna, so they didn't meet the standard for a lawsuit. The second time they amended it to say it's not 100% tuna, and used another study to show that they found pig, chicken, and cattle DNA in the sample, whcih of course will happen because DNA floats around like crazy and you have to control it to keep the samples pure, something no Subway is ever doing. Ham, chicken and beef don't get cooked at nearly the temperature of tuna, so it would be reasonable you'd find DNA of these animals there; you'd also probably find human DNA too because DNA just sheds from everything all the time. The second time it was thrown out was because the plaintiffs couldn't prove they ever bought a sandwich from Subway.

    So now they got their filings right and now it's moving forward. What a joke. These two lawyers are just parasites.

    • Re: (Score:3)

      by smap77 ( 1022907 )

      It isn't a third time, it's an amended complaint. In the legal system, specifics matter.

      Notice that Subway isn't, for example, allowing random sampling of their "tuna" products before the "aw, shucks" moment of cross-contamination in the store. I wonder what that would show?

      But maybe in the amazing American broken legal system, 100% can just mean 20% or something like that. Or Subway could just stop advertising 100% Tuna? The possibilities for truthful advertising are endless.

      • I wonder what that would show?

        Stupidity on the part of Subway. Do you routinely let people with an agenda in your property for a fishing expedition which you know they will use against you?

        You have nothing to hide right? So why not let any schmo come in and make sure you are the top citizen?

      • Notice that Subway isn't, for example, allowing random sampling of their "tuna" products before the "aw, shucks" moment of cross-contamination in the store. I wonder what that would show?

        It would show that subway will kowtow to offering free discover in lawsuits that have a questionable basis to begin with. They don't want to set a precedent of someone begin able to come in and say "Give me some of X because I think your claim that X is Y is not true". The law does not work that way. If a judge thinks it has merit enough to force subway to turn over some unused tuna to be tested the so be it, but only after there has at least been a finding that there is some (however small) chance that

    • Re: (Score:2)

      by Ubi_NL ( 313657 )

      require amplification and DNA amplification requires heat, when the DNA has been heated it's denatured, which effectivly means you've separated the two strands. The genomic material is there, but it's not longer in a format that scientific detection methods can detect easily.

      This is nonsense. PCR works on the single strand. I've been doing this for 15 years

      • Re: (Score:2)

        by martinX ( 672498 )

        It would be interesting to see this full article. Any chance you can get it?

      • I simplified the description of what happens. Cook meat through two retort processes, which are generally fairly high pressure and temperature, grind up the meat and see if any DNA can be detected on PCR; guarantee at best you get a weak signal, if anything at all. Retort, twice, is pretty destructive.

        Anyways, read the article and the stories. The whole comment isn't about the specifics of the analysis, the fact is it's a litigous lame attempt at a class action lawsuit that misrepresents science, is

        • Re: (Score:2)

          by Ubi_NL ( 313657 )

          But then the other pcrs in the experiment would also not work. Besides, this is not how the test works: You amplify a generic region (ribosomal, mito etc) along side to validate for dna content. Otherwise bad extraction would equate to a wrong conclusion.

    • Tort oven? Try "retort" oven.

    • Re: (Score:2)

      by DRJlaw ( 946416 )

      Basically when you cook tuna, which is often done twice; once in a tort oven at the processor and again in a tort oven post canning (the second cooking guarantees the elimination of any bacterial contamination), you've effectively destroyed the DNA. You can't run PCR or any other detection methods, all of which require amplification and DNA amplification requires heat, when the DNA has been heated it's denatured, which effectivly means you've separated the two strands. The genomic material is there, but it'

      • True, but it still seriously screws with PCR particularly the way that tuna is cooked. The lab they used, which they don't name, was unable to detect Tuna DNA, but that doesn't mean there's no tuna in it, it's just super hard to detect when it's been twice cooked in a high temp, high pressure oven.

  • Update (Score:3)

    by Anonymous Crowded ( 6202674 ) on Monday July 11, 2022 @08:34PM (#62694852)
    Deceptive marketing to potential franchise owners and draconian rules about self-competition still OK

    Glad that's safe.

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