New Food has published an article by Tenet in which Arun Chauhan and Esther Phillips analyse the legal issues behind the recent Subway fake tuna scandal. Tenet considers the factual basis of the claim, the limitations of DNA testing, the requirements of bringing a fraudulent misrepresentation claim in the UK and the wider impact of this case on the food industry.
On the available public domain material, the Subway tuna scandal appears to be a lot of controversy with factual assumptions and some potentially credible explanations by Subway.
Had there been a very low percentage of tuna, or had the product been consisting of only “by-product flakes”, it would have been arguable that Subway had misrepresented factually what the product was and would be liable for damages not only for fraudulent misrepresentation but also being unjustly enriched, i.e. selling a product mislabelled as a more valuable product (think sea bass often replaced by giant perch) when in fact it was something else of lower value and attraction to the consumer.
The claimants in the Subway tuna case, failed to get past the first hurdle of its original claim i.e. that the tuna contained no tuna DNA or that they could show that the DNA test was of no value to help Subway and absent any other evidence, one could assume Subway were lying.
One thing that is very clear, is that consumers are becoming much more aware when it comes to food labelling and holding companies to account for what appears on their labels.
The full article can be found here: https://www.newfoodmagazine.com/article/156461/a-fishy-business/