In February 2017, the reporters who work on the Canadian Broadcasting Corporation's (CBC) Marketplace show decided to DNA test six different pieces of chicken that had been purchased from five different fast food restaurants, just to see whether or not the beige meat that was stuffed into a sandwich or rolled into a wrap really was chicken.
Although the CBC noted that none of the samples were expected to come back stamped '100% chicken'—seasoning and processing it could cause it to lose a few percentage points—most of them were pretty close. The chicken patties and pieces from A&W, McDonald's, Tim Hortons, and Wendy's were all found to be somewhere between 88.5% and 89.4% chicken DNA.
And then there was Subway. After one round of tests, the team in the lab looked at the results, shook their collective heads, and ordered five new pieces of chicken and five new orders of chicken strips from the chain. They performed another round of DNA tests and realized nope, it wasn't a lab error: Subway's oven roasted chicken contained 53.6% chicken DNA, and its chicken strips were a mere 42.8% chicken. (The rest of it, the broadcaster said, was soy protein).
Subway did not take those results well. "The accusations made by CBC Marketplace about the content of our chicken are absolutely false and misleading," a spokesperson told VICE at the time. "We have advised them of our strong objections. We do not know how they produced such unreliable and factually incorrect data, but we are insisting on a full retraction […] This report is wrong and it must be corrected."
Two months later, Subway filed a $210 million defamation lawsuit against the CBC, alleging that the Marketplace report was "recklessly and maliciously" published, and that the DNA testing process "lacked scientific rigor." The chain also said that, as a result of Marketplace's findings, it had lost customers, lost its reputation, and had also lost a "significant" amount of sales.
But at the end of November, the The Ontario Superior Court threw Subway's lawsuit out, ruling that the CBC's program was an example of investigative journalism, and was protected under an anti-SLAPP ("Strategic Lawsuits Against Public Participation") statute that "encourages individuals to express themselves on matters of public interest," without the fear that they'll be sued if they speak out. (John Oliver covered SLAPP lawsuits and how they're used to stifle public expression on a recent episode of Last Week Tonight.)
"The Marketplace report dealt with the ingredients of sandwiches sold by popular fast food chains. It relayed the results of DNA tests performed by the Trent laboratory, which indicated that two types of Subway chicken products contained significantly less chicken DNA than other products tested," Justice E.M. Morgan wrote in his ruling.
"Furthermore, the Marketplace report raised a quintessential consumer protection issue. 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."
That's not to say that Justice Morgan didn't have some concerns: He did note that Subway's claims had "substantial merit," because it submitted its own evidence that its chicken contained only 1% soy filler—not the 40+ % alleged by the CBC. It also suggested that the laboratory that the CBC used was problematic (although the CBC retained its own expert who vouched for the lab's methodology and its results).
Finally, Justice Morgan considered that the CBC gave Subway time to respond to the allegations, and it included the chain's strongly worded disagreement in a follow-up broadcast, and in a written piece about the chicken's, um, less… chickeny components.
For what it's worth, the CBC did note that "an unadulterated piece of chicken from the store" should contain nothing but chicken DNA, in case you're either concerned about what you eat, or you need 100% chicken DNA for the unholy abomination you've been stitching together in your underground laboratory.
UPDATE 12/3/19: Subway provided the following comment to VICE regarding the lawsuit:
Statement from Subway Restaurants:
“The case has not been dismissed in its entirety, and this decision does not validate the tests performed by Trent University. In fact, the judge’s opinion states: ‘The record submitted by Subway contains a substantial amount of evidence indicating that the Trent laboratory tests were of limited or no value in determining the chicken content of Subway’s products,’ and ‘…there is considerable evidence that suggests the false and harmful nature of the information conveyed to the public in the Marketplace report.’
The CBC Marketplace story at issue is wholly inaccurate and built on flawed research, which caused significant harm to our network of Franchise Owners. In 2017, two independent laboratories in Canada and the U.S. found our chicken to be 100 percent chicken breast with added seasoning, verified that the soy content was only in the range of 1 percent, and contested the testing methodology.
The quality and integrity of our food is the foundation of our business, and we will continue to vigorously defend Subway ® Franchise Owners against false allegations such as those made by CBC’s Marketplace program. We are reviewing the recent decision by the Ontario court and are confident in the ability to continue our claims against Trent University while an appeal against the CBC is under review.”