Subway sues journalists for reporting its chicken is only 50% chicken—and loses

If you’ve ever thought that there was something a bit... off about Subway’s chicken, well, you are not alone. Back in 2017, a team of reporters for the Canadian Broadcast Corporation program Marketplace were curious, too. They sent samples of Subway chicken, along with chicken from A&W, McDonald’s, Tim Horton’s, and Wendy’s, to a lab at Trent University in Peterborough, Ontario, to test how much of it was actually, you know, chicken. They weren’t expecting anything to come back as 100%—things happen during processing and seasoning—but most of the tests came back showing between 88.5% and 89.4% chicken DNA. Except for Subway. Subway’s “oven roasted chicken” tested as 53.6% chicken and its strips were 42.8%. The rest was soy protein. Perhaps, they thought, there had been a mistake in the lab. But when they tested again, the results were the same.

Because they are journalists, the Marketplace team broadcast the results of the study, but not before giving Subway a chance to respond. Subway, predictably, was not pleased. It was so displeased, in fact, that it did what any unhappy corporate entity (or U.S. congressman) would do: It filed a $210 million defamation suit, claiming that the story was “recklessly and maliciously” published and that the study itself “lacked scientific rigor.” When the suit went to court, the chain submitted its own scientific evidence that its chicken was less than 1% filler.

Happily for the CBC, though maybe not for Subway, the suit was dismissed by the Ontario Superior Court earlier this week, Vice reports. “The Marketplace report raised a quintessential consumer protection issue,” Justice E.M. Morgan wrote in his ruling. “There are few things in society of more acute interest to the public than what they eat. To the extent that Subway’s products are consumed by a sizable portion of the public, the public interest in their composition is not difficult to discern and is established on the evidence.”

But this is not the end of it, not by a long shot. In Canada, as in the U.S., losers in lawsuits can appeal, and that is exactly what Subway plans to do. “The CBC Marketplace story at issue is wholly inaccurate and built on flawed research,” a spokesperson told Vice, “which caused significant harm to our network of Franchise Owners.”

Still, the disparity between the two scientific tests, not to mention the disparity between Subway and the other chains in the original test, does make one wonder.