
USCA1 Opinion

	




          March 2, 1993                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 92-1597                                 ABRUZZI FOODS, INC.,                                Plaintiff, Appellant,                                          v.                              PASTA & CHEESE, INC., and                                  CARNATION COMPANY,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Edward F. Harrington, U.S. District Judge]                                               ___________________                                 ____________________                                        Before                                 Breyer, Chief Judge,                                         ___________                            Bownes, Senior Circuit Judge,                                    ____________________                              and Boudin, Circuit Judge.                                          _____________                                 ____________________            Elliot  M.  Loew  with  whom  Loew  &  Tamkin  was  on  brief  for            ________________              _______________        appellant.            Sydelle  Pittas with  whom Powers  & Hall, P.C.  was on  brief for            _______________            ____________________        appellees.                                 ____________________                                    March 2, 1993                                 ____________________                       BREYER,  Chief Judge.  Abruzzi Foods, Inc. brought                                ___________             this diversity action against  a competitor, Pasta & Cheese,             Inc. (and its parent).   Abruzzi claims that Pasta  & Cheese             has  violated  chapter  93A  of the  Massachusetts  code  by             "deceptive[ly]" calling  its pasta  "fresh."  Mass.  Gen. L.             ch. 93A,    2(a) (forbidding  "unfair or  deceptive acts  or             practices  in the conduct of  any trade or  commerce"),   11             (permitting civil suits by competitors).  The district court             granted  the   defendants'  motion  for   summary  judgment.             Abruzzi appeals.  We affirm the judgment.                       The determinative legal question is whether or not             Abruzzi,  responding  to  the  defense  motion  for  summary             judgment, "set forth specific facts," Fed. R. Civ. P. 56(e),             which,  in  this  context,  would  permit  a  factfinder  to             conclude that  the defendants' use  of the word  "fresh," on             its  pasta  labels and  in  its pasta  advertising,  had the             "capacity  or  tendency or  effect  of  deceiving buyers  or             prospective  buyers in  any material  respect," Mass.  Regs.             Code  tit.  940,   3.05(1).   We  have  read the  record and             conclude that it did not.                       Pasta &  Cheese sets  forth by affidavit,  Fed. R.             Civ.  P. 56(c),  important facts  about the  product, namely             that it is "not dehydrated, frozen or canned," that it is to             be "refrigerated .  . . at the store," that  it retains "its             fresh  appearance, texture,  fragrance, and  taste,"  that a             buyer is to cook it "in boiling water for very brief periods             of time," and  that it  has a somewhat  limited shelf  life.             Pasta & Cheese  also concedes, for argument's  sake, that it             "pasteurizes"  the   product  to  "retard[]   spoilage"  and             "preserve  .  .  .  freshness  .  .  .  for  a  commercially             reasonable shelf-life period."  Abruzzi does not dispute any             of these  facts.  Rather,  it seeks  to show that  calling a             "pasteurized" pasta product "fresh" is deceptive.                       The fatal problem for Abruzzi consists of its lack             of evidence that  this is so.  Abruzzi cannot  appeal to the             "common sense" of  the matter, for  "common sense" does  not             support its claim.   Rather, common sense  suggests that the             answer to  the question, "Does calling  this product 'fresh'             mislead?"  is,  "It  depends."    One  might,  for  example,             accurately  call  pasteurized  milk  "fresh,"  in  order  to             distinguish it from condensed or powdered or long-life milk.             See  FDA, Final Rule, Food Labeling, 58 Fed. Reg. 2302, 2403             ___             (Jan. 6, 1993) (to be codified at 21 C.F.R.   101.95) (since                             _________________             "consumers   recognize   that    milk   is   nearly   always             pasteurized,"  there is  no danger  of deception  in calling             pasteurized milk "fresh").   But, to call pasteurized orange                                         -3-                                          3             juice "fresh" is a different matter.  See id. at 2403; Coca-                                                   ___ ___          _____             Cola  Co. v. Tropicana Products, Inc., 690 F.2d 312, 318 (2d             _________    ________________________             Cir. 1982) (finding plausible the claim that the advertising             of  pasteurized juice as "as  it comes from  the orange" was             facially false).  Of  course, pasta is  not milk; nor is  it             like  orange juice, for (despite the  occasional hint to the             contrary)  pasta does  not  grow on  trees.   All  pasta  is             "artificial" in  the sense that it  is manufactured; indeed,             sophisticated  machinery is  necessary to  produce  pasta in             "commercial" quantities for supermarkets.   In this context,             the word  "fresh"  might well  (as  Pasta &  Cheese  argues)             distinguish pasta that  is soft and cooks  quickly and needs             refrigeration  from pasta  that  is dried  and needs  longer             cooking time, and lasts  almost forever at room temperature.                       Nor  can  Abruzzi  succeed  by  pointing  to  some             special   legal  rule,   or  legal   precedent,   that  says                       _____             "pasteurized pasta" is not "fresh" pasta.   The federal Food             and Drug Administration has  recently published rules on the             use of the word "fresh."  See 58 Fed. Reg. at 2401-07, 2426.                                       ___             (Indeed, we have waited to see  what they would say.)  Those             regulations make clear that whether or not the use of such a             word is, or is not, deceptive varies, depending upon product             and context.   The FDA decided  not to promulgate a  rule or                                         -4-                                          4             regulation governing the use of the  term "fresh" as applied             to refrigerated  pasta in  "extended shelf life"  packaging,             such as  the products  before us.   See id.  at 2406,    335                                                 ___ ___             ("because of the diversity of products in the extended shelf             life  category  [expressly   including  "pasta   products"],             [freshness standards]  for  such products  [are]  not  being             addressed in this  rule").  Thus,  Abruzzi cannot appeal  to             the FDA rules for support.                       All this means that  Abruzzi must rely upon record                                                                   ______             evidence.  And, Abruzzi does not do well in that department.             ________             It points to  two items.   First, its  president, Mr.  Mario             Boccabella,  stated in  a  deposition that  "pasteurization"             amounts  to "precook[ing]  a  product," which  is "going  to             change  the  texture  and  the freshness  category  of  that             product tremendously,"  to  the  point  where  "[y]ou're  no             longer  dealing with a fresh  product."  Other statements by             Mr. Boccabella, however, make clear  that he believed it  is             the drying of the pasta  that makes it "unfresh."  He  said,                 ______             for  example,  that "before  that  drying  pasta [sic]  took             place, that would be fresh pasta.  But once a drying process             takes  place, it's becoming brittle, . . . so it's unfresh."             And,  we can find nothing  in the evidence  to which Abruzzi                                         -5-                                          5             points that  would adequately  support a finding  that Pasta             and Cheese's "fresh" pasta is dry and brittle.                       Second, Abruzzi points to an article in a magazine             that  says that a different  firm not involved  in this case             uses a  pasteurization process for its  "fresh" pasta, which             process  "in  actuality, extends  product  shelf  life to  6             months."  Even were  this article admissible evidence, which             it is not, see Fed. R. Evid. 802; Pallotta v. United States,                        ___                    ________    _____________             404  F.2d 1035,  1036  (1st Cir.  1968) (newspaper  article,             being  hearsay,  "clearly  unusable"   to  prove  the  facts             asserted  therein); Staniewicz  v. Beecham,  Inc., 687  F.2d                                 __________     ______________             526, 529-30 (1st  Cir. 1982) (requiring an  exception to the             hearsay  rule   to  be  shown  before   a  magazine  article             discussing  corporate commercial policy  could be admitted);             Daniel  E.  Feld,  Annotation,  Admissibility  of  Newspaper                                             ____________________________             Article  as  Evidence of  the  Truth  of  the  Facts  Stated             ____________________________________________________________             Therein,  55 A.L.R.3d  663 (1974),  it is  only tangentially             _______             relevant to the consumer deception issue.                       Taking   all   Abruzzi's  evidence   together,  we             conclude that  it would not support  factfindings that could             bring this case  within the  scope of ch.  93A's legal  term             "unfair or deceptive acts or practices."  Nor do we see how,             given this conclusion, a court could find in Abruzzi's favor                                         -6-                                          6             on  either of  two  other claims  that  it made,  one  under             Massachusetts common law and  the other under  Massachusetts             antitrust law, Mass. Gen. L. ch. 93.  (Indeed, in respect to             this last point, Abruzzi makes no contrary argument.)                        For these reasons,  the judgment  of the  district             court is                       Affirmed.                       ________                                         -7-                                          7
