Image of tuna sub via Subway; illustration by Bettina Makalintal
Last week, two California residents filed a lawsuit against Subway alleging that the tuna in its wraps and sandwiches isn’t tuna at all, but instead “a mixture of various concoctions that do not constitute tuna, yet have been blended together by [Subway] to imitate the appearance of tuna.” Approximately 10 billion blogs have now been written about the Subway Tuna Fiasco, and despite the fact that they’ve all put their “allegedly”s and “according to the lawsuit”s and “Subway denies the claim”s in the right place, the prevailing take on Twitter is, of course: The tuna is fake! Gross! Subway fucking sucks! Here’s the problem with that: The lawsuit doesn’t provide a single shred of evidence that Subway’s tuna isn’t tuna. In fact, the attorneys who filed the suit won’t even say what they think the purportedly fake tuna is—only that it’s, uh, something other than tuna.
Maybe it is tuna, as Subway has repeatedly insisted over the past few days. Maybe it isn’t, as the lawsuit’s plaintiffs, Karen Dhanowa and Nilima Amin, and their attorneys, Shalini Dogra and Alex Brown, claim. But unless some food scientist decides to conduct an independent test of a bunch of Subway tuna sandwiches, we just won’t know. In the meantime, it’s worth unpacking exactly what this lawsuit contains, and considering why either party involved might be motivated to lie about something this ridiculous. (VICE reached out to Subway for comment, but has yet to hear back. VICE also contacted the office of Alex Brown, which responded with a copy of the lawsuit, but otherwise declined to comment. Shalini Dogra did not respond to a request for comment.)
So What’s in the Lawsuit?
Over the span of 25 pages, the only thing the attorneys for the plaintiffs really say is that Subway’s tuna isn’t tuna, over and over again, in increasingly fancy language. A few examples:
“In reality, the Products do not contain tuna nor have any ingredient that constitutes tuna.”
”The Products lack tuna and are completely bereft of tuna as an ingredient.”
“The filling in the Products has no scintilla of tuna at all.”
“The Products entirely lack any trace of tuna as a component, let alone the main or predominant ingredient.”
The attorneys claim that “independent testing has repeatedly affirmed” that there’s no actual tuna in Subway’s tuna, but they provide no details on what that testing involved, who conducted it, when it happened, or how many samples were studied. Nor do they indicate what they found the supposedly fake tuna actually contains, other than describing it as “a mixture of various concoctions that do not constitute tuna.” When pressed by CBS News to explain what those “various concoctions” might be, Brown didn’t have an answer.
“We are conducting tests to figure out what it is,” he told CBS. “The lab tests thus far have only told us what it isn’t.”
The lawsuit stops short of accusing all Subway tuna of being not-tuna; instead, it limits that charge to Subways in the state of California, which, the suit claims, have been doing this since January 21, 2017.
Why Would Subway Sell Fake Tuna?
According to the lawsuit, California Subway locations “are deceptively saving substantial sums of money in manufacturing the Products because the fabricated ingredient they use in the place of tuna costs less money.” Let’s examine that.
A spokesperson for Subway told the Washington Post the tuna in their sandwiches is wild-caught, and the company’s website describes it as “flaked,” which means it’s made up of the leftover pieces from a loin of tuna. Essentially, that’s the same stuff you get in a can of Starkist. According to the Food and Agriculture Organization of the United Nations, the average price of one ton of frozen, wild-caught skipjack—the kind of fish most commonly used in canned tuna—hovered around $1,000 throughout 2020.
Each six-inch Subway tuna sandwich contains no more than 150 grams of tuna, according to nutrition information from Subway. There are 907,185 grams in a ton—enough to make about 6,000 subway tuna sandwiches. At $1,000 a ton, the tuna on each individual Subway sandwich theoretically costs the company about 16 cents.
Perhaps, as the lawsuit against Subway claims, there’s some other, cheaper substance out there that looks like tuna, smells like tuna, and tastes like tuna, and Subway is putting it on their sandwiches. But it’s hard to imagine something like that costing less than 16 goddamn cents per sandwich.
Why Would Someone Accuse Subway of Selling Fake Tuna If It’s Real?
The attorneys in this case are seeking to make it a class-action lawsuit. They’ll try to bring together as many people as they possibly can who have eaten a Subway tuna sandwich in California in the past three years, and make them all plaintiffs. The damages owed to a single plaintiff in a case like this would be miniscule—but when you have hundreds, or even thousands, you stand to make a considerable amount of money. Part of that money goes to the plaintiffs themselves, and part of it goes to the attorneys representing them.
According to several California attorneys who specialize in class-action suits, who spoke with VICE in December, a ridiculously small number of class-action lawsuits—less than 1 percent—actually wind up going to trial. Instead, the plaintiff’s attorneys try to apply as much pressure as possible on the entity they’re suing to settle. Settling appeals to the defendants for a few reasons: a) If they don’t, they’ll have to keep paying their lawyers to deal with this thing, which can drag on for years; b) Once they’ve settled, press and public attention on the suit drops off a cliff, minimizing damage to their reputation; and c) They can almost always agree to pay out a settlement amount that’s significantly less than what they might be on the hook for if their case were to go in front of a jury. Plus, the entity being sued doesn’t have to make a formal admission of wrongdoing, and the results of the settlement remain confidential.
Even if the entity being sued is innocent of what it’s being accused of, it’s often easier—and cheaper—to just settle anyways. Attorneys know that, and sometimes, they exploit it.
Maybe Subway’s tuna is tuna; maybe it’s not. Regardless, the company might find itself in a position where it saves them money to stop bleeding out legal expenses and just fork over a settlement payment.
When Will We Know if the Tuna Is Real?
Only God knows. Maybe the attorneys suing Subway will release details about their study, or some random scientist with too much time on their hands will conduct their own, or Subway will somehow demonstrably prove that their tuna is tuna, and we’ll find out soon. Maybe the impossible happens, and this case actually goes to trial in, like, seven years, and we find out then. Maybe Subway settles, everything involved in that settlement is kept confidential, and we never find out.
All we can say with any degree of certainty is this: More than likely, by the time the truth comes out, no one’s going to care about it anymore.
Follow Drew Schwartz on Twitter.