March 2, 1993

               UNITED STATES COURT OF APPEALS
                   FOR THE FIRST CIRCUIT
                                        

No. 92-1597

                    ABRUZZI FOODS, INC.,

                   Plaintiff, Appellant,

                             v.

                 PASTA &amp; 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  &amp;  Tamkin  was  on  brief  for
                                            
appellant.
Sydelle  Pittas with  whom Powers  &amp; 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 &amp; Cheese,

Inc. (and its parent).   Abruzzi claims that Pasta  &amp; 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 &amp;  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 &amp; 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

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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 &amp;  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

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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

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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

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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.
                  

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