DocketNumber： 92-1597
Filed Date： 3/2/1993
Status： Precedential
Modified Date： 9/21/2015
March 2, 1993
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 92-1597
ABRUZZI FOODS, INC.,
Plaintiff, Appellant,
v.
PASTA & CHEESE, INC., and
CARNATION COMPANY,
Defendants, Appellees.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Edward F. Harrington, U.S. District Judge]
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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
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appellant.
Sydelle Pittas with whom Powers & Hall, P.C. was on brief for
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appellees.
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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
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(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-
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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.
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(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.
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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,
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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,
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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
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Article as Evidence of the Truth of the Facts Stated
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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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