A lawsuit brought against Subway, a food retailer with over 27,000 US stores, alleging their tuna sandwiches intentionally misleads consumers since the ingredients are not 100 percent tuna, is now headed to court.

Federal US District Judge Jon Tiger of California ruled that Subway’s recent request to dismiss this lawsuit is denied. The lawsuit seeks damages for fraud and violating California consumer protection laws.

The lawsuit was filed by California residents Nilima Amin and Karen Dhanowa in 2021. Amin and Dhanowa alleged Subway’s tuna was not 100 percent tuna as they touted, but instead, "partially or wholly lack tuna as an ingredient (and) contain other fish species, animal products, or miscellaneous products aside from tuna.”

The Subway tuna sandwiches were tested at a UCLA marine biology laboratory by biologist Paul Barber before Amin filed her claim against the retail sandwich giant. Barber tested more than twenty Subway tuna sandwiches in 2021. The testing revealed the Subway tuna was indeed not 100 percent tuna.

Court documents reveal that the Subway tuna testing at the UCLA Barber Lab found nineteen samples containing "no detectable tuna DNA sequences.” The court documents also report this testing also revealed that all twenty tuna sandwiches tested had chicken DNA, 11 had pork DNA and 7 had cattle DNA.

Subway strongly disagrees with the suit and stated that any non-tuna products found in their Subway tuna sandwiches are “most likely” due to employees’ “cross-contact” while making the sandwiches.

However, if this “cross-contact” by Subway employees is the reason why all twenty tuna sandwiches included chicken, pork and cattle DNA in the testing, a legal case can be made that consumers who are allergic to or religiously averse to these meat products were misled by Subway.

Subway is denying all allegations against them serving non-tuna products in their tuna sandwiches. On their website, prominently featured in their top banner with links to pages with ‘facts,’ the company is refuting the claims against them of deceiving customers with false product ingredients.

The website states, “That’s right. The truth is, Subway uses wild-caught tuna regulated by the Food and Drug Administration (FDA). A favorite among sub lovers, our tuna is and has always been high-quality, premium and 100% real.”

However, even if the Subway explanation that employees may have cross-contaminated tuna sandwiches, that excuse doesn’t end the matter for Judge Tigar.

“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 said. Tigar added he also believes the plaintiff, Amin, will instruct her attorneys to file an amended complaint.

Plaintiff Amin was a fan of the Subway tuna and claims she ordered their sandwiches, wraps, and salads with tuna more than one hundred times between 2013 - 2019.

The judge also rejected part of the plaintiff’s argument, saying consumers would expect only 100 percent tuna in the sandwich since the sandwiches would include the bread, or wrap, and mayonnaise.

Subway is standing behind its tuna products, running television ads, and displaying prominent website information, and it has kept its tuna salads, wraps and sandwiches on its new menu.

The FDA, in the Code of Federal Regulations, Title 21, Volume 2, is clear: all ingredients must be declared on the label. This section states,

“(a)(1) Ingredients required to be declared on the label or labeling of a food, including foods that comply with standards of identity, except those ingredients exempted by § 101.100, shall be listed by common or usual name in descending order of predominance by weight on either the principal display panel or the information panel in accordance with the provisions of § 101.2, except that ingredients in dietary supplements that are listed in the nutrition label in accordance with § 101.36 need not be repeated in the ingredient list.”

With DNA from chicken, pork and cattle found in the UCLA marine biology laboratory, it is possible more testing will need to be done on the Subway tuna products.