The Tuna That Wasn't... But Probably Was

There’s a big brouhaha afoot about whether Subway’s tuna sandwiches actually contain… you know… tuna.

A lawsuit in California got all this started, and then the New York Times got into the act, and then, well, there are claims and counter-claims, virtually all of which are predictable: the plaintiffs say X, and the company spokesperson says not-X.

Curmie is not a fan of either Subway or tuna sandwiches, at least those not made from a small can of Starkist or Chicken of the Sea.  If he’s ever eaten a Subway tuna sandwich, it was probably 20+ years ago.  So it’s not like there’s a lot riding on the outcome of this kerfuffle from a personal perspective.  I could cheerfully live out the rest of my days without Subway or tuna sandwiches, let alone both at once.

Anyway, let’s take this from the beginning.  In the January Washington Post article that started any national interest in this case, reporter Tim Carman writes that:

The star ingredient, according to the lawsuit, is “made from anything but tuna.” Based on independent lab tests of “multiple samples” taken from Subway locations in California, the “tuna” is “a mixture of various concoctions that do not constitute tuna, yet have been blended together by defendants to imitate the appearance of tuna,” according to the complaint. Shalini Dogra, one of the attorneys for the plaintiffs, declined to say exactly what ingredients the lab tests revealed….  “We found that the ingredients were not tuna and not fish,” the attorney said in an email to The Washington Post.

Subway wasn’t about to let those claims go unrefuted.  Part of spokeswoman Maggie Truax’s statement:

These baseless accusations threaten to damage our franchisees, small business owners who work tirelessly to uphold the high standards that Subway sets for all of its products, including its tuna. Given the facts, the lawsuit constitutes a reckless and improper attack on Subway’s brand and goodwill, and on the livelihood of its California franchisees. Indeed, there is no basis in law or fact for the plaintiffs’ claims, which are frivolous and are being pursued without adequate investigation.

Unfortunately, this lawsuit is part of a trend in which the named plaintiffs’ attorneys have been targeting the food industry in an effort to make a name for themselves in that space. Subway will vigorously defend itself against these and any other baseless efforts to mischaracterize and tarnish the high-quality products that Subway and its franchisees provide to their customers, in California and around the world, and intends to fight these claims through all available avenues if they are not immediately dismissed.

Well, OK, then.

Several months later, the New York Times got into the act.  They sent reporter Julia Carmel to do a little investigation.  She bought “more than sixty inches worth of Subway tuna sandwiches.  [She] removed and froze the tuna meat, then shipped it across the country to a commercial food testing lab.”  The spokesman for the lab in question “agreed to test the tuna but asked that the lab not be named…, as he did not want to jeopardize any opportunities to work directly with America’s largest sandwich chain.”

The results: 

No amplifiable tuna DNA was present in the sample and so we obtained no amplification products from the DNA…. Therefore, we cannot identify the species…. There’s two conclusions.  One, it’s so heavily processed that whatever we could pull out, we couldn’t make an identification. Or we got some and there’s just nothing there that’s tuna.

That seems rather damning… but is it?  First off, Carmel notes that the plaintiffs were backing off at least some of their claim: no longer was the complaint that the stuff of those sandwiches wasn’t fish at all, but rather that it wasn’t “100% sustainably caught skipjack and yellowfin tuna,” as advertised on the company’s sourcing website. 

This is interesting in that this revelation cuts both ways.  One the one hand, it suggests that the initial claim, and the attending publicity, was fraudulent.  On the other hand, it also could be taken to mean that although they couldn’t prove the initial claim, they can prove this one.

The lab’s explanation also needs to be teased out.  Carmel writes, “Once tuna has been cooked, its DNA becomes denatured — meaning that the fish’s characteristic properties have likely been destroyed, making it difficult, if not impossible, to identify.”  And tuna is indeed cooked, twice (!) before making it to a Subway franchise. 

Moreover, when Inside Edition tried the same experiment (other than gathering their samples from New York instead of LA), the results were uniformly positive for tuna.  A couple of things stand out here.  First, the lab in question was identified, unlike the one the Times used.  Inside Edition used Applied Food Technologies in Florida.  LeeAnn Applewhite, AFT’s CEO, confirmed that the tuna sandwiches her firm tested were, in fact, tuna.

And now Curmie is even more confused.  Let’s see: the company that says what the country’s largest sandwich chain would want them to say is willing to be identified; the one that supports (sort of) the lawsuit isn’t.  Curmie hastens to add that it would take considerably more evidence to assert that either of these labs are doing anything untoward, but the coincidence does make a skeptic raise an eyebrow at the very least.

Moreover, does the fact that AFT can confirm the presence of tuna in the tuna mean that the absence in the tests conducted by whatever labs the plaintiffs in the lawsuit really does show that there was no tuna in the “tuna” they tested?  Or did they use different tests?  Or did Subway have an “oh, shit, they’re on to us; we’d better start putting tuna in the tuna” moment?  Curmie did well in high school biology, but that was a half century ago, and somehow I suspect the answers to these questions might require some actual expertise, not just the ability to score well on the Regents exam.  (Curmie wonders if those things even exist any more in New York State.)

Of course, two other ideas need to be factored in.  First, even if what got served as tuna wasn’t actually tuna, the chances are good that Subway is the victim rather than the perpetrator: that the deception comes from the cannery, not the distributor.  Carmel is quoted in a follow-up piece entitled “Inside Our Subway Tuna Sandwich Test” that “Everyone I talked to said that if it’s anyone’s fault, it isn’t Subway’s.”  Carmel’s story also quotes Peter Horn, the director of the Ending Illegal Fishing Project at the Pew Charitable Trusts, that “it would be difficult to place blame on Subway.”  Tuna is cheap enough to begin with, so the savings wouldn’t be worth the risk to reputation, even in the most amoral of scenaria.   

Finally, there’s the suggestion that perhaps yes, it’s tuna, but not of the best quality.  Well, duh.  I don’t know how to break this to you, Gentle Reader, but Subway does not qualify as fine dining.  Curmie and Beloved Spouse went out to dinner a couple of nights ago (the first time we’d done so post-COVID, as it happens).  We went to a place that calls itself an “ale-house and bistro.”  Curmie had a cheeseburger.  It was considerably better than what one could buy at one of the fast-food joints that line our city’s major north-south thoroughfare.  It also cost twice as much as one of those places would charge.  Curmie attracts a pretty intelligent readership, so he’s betting you already considered the distinct possibility that these two concepts might be linked, perhaps even causally.

Of course, if there is a misrepresentation, even if Subway isn’t directly responsible, it’s reasonable to wonder just how rigorous they are at overseeing the integrity of their products.  Conversely, the plaintiffs may have simply have hired a couple of shyster lawyers looking for a juicy settlement, truth be damned.  Or both.  Certainly it’s difficult to feel too much sympathy for either side.

Curmie’s best guess: it’s tuna.  Will he be eating a Subway tuna sub any time in the near future?  No.  But he wouldn’t have been doing so, anyway.