Abruzzi Foods, Inc. v. Pasta & Cheese ( 1993 )


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  • 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,
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    Bownes, Senior Circuit Judge,
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    and Boudin, Circuit Judge.
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    ____________________


    Elliot M. Loew with whom Loew & Tamkin was on brief for
    ________________ _______________
    appellant.
    Sydelle Pittas with whom Powers & Hall, P.C. was on brief for
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    appellees.

    ____________________

    March 2, 1993
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    BREYER, Chief Judge. Abruzzi Foods, Inc. brought
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    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
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    "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
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    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
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    "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
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    ("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
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    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
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    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
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    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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Document Info

Docket Number: 92-1597

Filed Date: 3/2/1993

Precedential Status: Precedential

Modified Date: 9/21/2015