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September 28, 1989


The opinion of the court was delivered by: BUA


 Plaintiff's three-count complaint seeks recovery for defendants' alleged violations of the Lanham Act, 15 U.S.C. § 1051 et seq., the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1961 et seq., and the common law of unfair competition. In response to plaintiff's allegations, defendants argue that plaintiff has failed to state a claim under the Lanham Act or RICO and, as a result, the court lacks jurisdiction over plaintiff's pendent unfair competition claim. Based on these arguments, defendants have moved to dismiss the complaint in its entirety. For the reasons stated herein, defendants' motion is granted in part and denied in part.


 Plaintiff Grove Fresh Distributors, Inc. ("Grove Fresh") distributes orange juice and other food-related products. Defendant Flavor Fresh Foods, Inc. ("Flavor Fresh") manufactures and distributes orange juice; its president is defendant James E. Benton. All three counts in Grove Fresh's complaint arise out of defendants distribution of a product which it has labeled and represented as "Flavor Fresh 100% Orange Juice from Concentrate." Grove Fresh alleges that the Flavor Fresh product contains various additives and adulterants, including sugar. Therefore, according to Grove Fresh, the Flavor Fresh product is not really "100% [pure] orange juice from concentrate" as defendants have represented it to be in Flavor Fresh correspondence, shipping orders, invoices, labels, and advertising.

 Grove Fresh maintains that defendants' intentional misrepresentations concerning the composition of the Flavor Fresh product have caused confusion, deception, and mistake in the orange juice market. Grove Fresh further claims that this confusion has increased the sales of the Flavor Fresh product while hindering the sales of orange juice products distributed by Grove Fresh. Therefore, Grove Fresh seeks to recover the damages it has incurred and the profits Flavor Fresh has gained as a result of defendants' misrepresentations. Grove Fresh also seeks punitive damages, treble damages, and an injunction enjoining Flavor Fresh from further misrepresenting the nature of its product.


 I. Count I -- Lanham Act

 In Count I, Grove Fresh alleges that Flavor Fresh has violated section 43(a) of the Lanham Act. That section provides:

Any person who shall . . . use in connection with any goods . . . any false description or representation, including words or other symbols tending falsely to describe or represent the same, and shall cause such goods . . . to enter into commerce . . . shall be liable to a civil action . . . by any person who believes that he is or is likely to be damaged by the use of any such false description or representation.

 15 U.S.C § 1125(a). Grove Fresh maintains that defendants' false descriptions and misrepresentations of the Flavor Fresh product as "100% orange juice from concentrate" are precisely the type of conduct proscribed by section 43(a). Therefore, Grove Fresh argues that Count I clearly states a claim under the Lanham Act.

 Defendants, however, argue that although Count I purports to state a claim under the Lanham Act, the allegations in Count I amount to nothing more than an attempt to recover damages for a violation of the Federal Food, Drug, and Cosmetic Act ("FDCA"), 21 U.S.C. § 301 et seq., and the regulations promulgated thereunder by the Food and Drug Administration ("FDA"). Defendants maintain that the "sole thrust" of Count I is that defendants violated 21 C.F.R. § 146.145, an FDA regulation establishing a specific definition of the term "orange juice from concentrate," and 21 U.S.C. § 343, an FDCA provision which prohibits misbranding of food. Defendants point out that under well-settled law, there is no private cause of action for civil damages under the FDCA. See Pacific Trading Co. v. Wilson & Co., Inc., 547 F.2d 367, 370 (7th Cir. 1976). Therefore, defendants urge the court to dismiss Count I of the complaint as "an obvious attempt to circumvent the express limitations of the FDCA through the guise of an alleged violation of the Lanham Act." Defendants' Memorandum, at 5.

 Defendants urge the court to be guided by Davis v. U.S., 722 F.2d 1157 (4th Cir. 1983), cert. denied, 466 U.S. 950, 80 L. Ed. 2d 537, 104 S. Ct. 2151 (1984), in dismissing this action. Davis, however, is distinguishable from the instant case. In Davis, the plaintiff filed a complaint against the United States under the Federal Tort Claims Act, 28 U.S.C. § 1346(b) and § 2671 et seq. The plaintiff sought damages he incurred as a result of an alleged violation of the Federal Water Pollution Control Act ("FWPCA"), 33 U.S.C. § 1251 et seq., by a United States Air Force base. The Fourth Circuit upheld the district court's dismissal of the complaint ...

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