U.S. District Judge Jon Tigar in San Francisco called it premature to accept Subway’s argument that any presence of non-tuna DNA could come from eggs in the mayonnaise or from cross-contact with other ingredients handled by its employees. “While it is possible that Subway’s explanations are correct, it is also possible that these claims refer to ingredients that a reasonable consumer would not reasonably expect to find in a tuna product,” Tigar ruled on July 7. The judge also said plaintiff Nilima Amin, an Alameda County resident who claimed she ordered Subway tuna products more than 100 times from 2013 to 2019, could try to prove that the salads, sandwiches and wraps “lack ” the mind. Tigar rejected Amin’s argument that “reasonable consumers” would expect only tuna and nothing else, calling it a “fact of life” that tuna products could contain mayonnaise and bread. He also dismissed another plaintiff from the case. In a statement, Subway said it was “100 percent serving tuna” and was disappointed that the “reckless and inappropriate” lawsuit could continue. “We are confident that Subway will prevail when the court has a chance to consider all the evidence,” he added. Amin’s lawyers did not immediately respond to requests for comment. Subway has repeatedly defended its tone in TV ads and on its website and said no changes are needed. Menu revamps this month and last July didn’t include tonal changes. Amin’s lawsuit was based on findings from a marine biologist who examined 20 tuna samples from Subways in southern California. Testing at UCLA’s Barber Lab found that 19 samples contained “no detectable tuna DNA sequence,” while all 20 had chicken DNA, 11 had pork DNA and seven had cattle DNA, the complaint said. The suit seeks damages for fraud and violation of California’s consumer protection laws. Tigar rejected an earlier version last November.
