The opinion of the court was delivered by: MANNING
MEMORANDUM OPINION AND ORDER
The Ho Chunk Nation, a Native American tribe recognized by the Bureau of Indian Affairs, brings this suit on behalf of Native American Arts, Inc. (NAA) against Village Originals, Inc. (Village Originals), alleging violations of the Indian Arts and Crafts Act of 1990 (IACA), 25 U.S.C. § 305e (count I), unfair and deceptive trade practices in violation of the Illinois Consumer Fraud and Deceptive Business Practices Act, 815 ILCS 505/2 and the Uniform Deceptive Trade Practices Act, 815 ILCS 510/2 (counts II and III). Village Originals moves to dismiss pursuant to Fed. R. Civ. P. 9 & 12 (b)(6), claiming that: (1) NAA lacks standing to be a party to this action; (2) IACA does not impose liability for violations caused by a defendant's negligent conduct; (3) the IACA is unconstitutionally overbroad and vague; and (4) the plaintiffs have not adequately pled facts constituting deceptive or fraudulent trade practices to support their IACA or supplemental state law claims. For the reasons set forth below, the motion is granted, in part, and denied in part.
II. Standard of Review for a Motion to Dismiss
In ruling on a motion to dismiss pursuant to Fed. R. Civ. P. 12 (b) (6), the court must assume the truth of all facts alleged in the complaint, construing the allegations liberally and viewing them in the light most favorable to the plaintiff. See e.g. McMath v. City of Gary, 976 F.2d 1026, 1031 (7th Cir. 1992); Gillman v. Burlington N. R.R. Co., 878 F.2d 1020, 1022 (7th Cir. 1989). Dismissal is properly granted only if it is clear that no set of facts which the plaintiff could prove consistent with the pleadings would entitle the plaintiff to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957); Kunik v. Racine County, Wis., 946 F.2d 1574, 1579 (7th Cir. 1991), citing Hishon v. King & Spalding, 467 U.S. 69, 73, 81 L. Ed. 2d 59, 104 S. Ct. 2229 (1984).
The court will accept all well-pled factual allegations in the complaint as true. Miree v. DeKalb County, 433 U.S. 25, 27 n. 2, 53 L. Ed. 2d 557, 97 S. Ct. 2490 (1977). In addition, the court will construe the complaint liberally and will view the allegations in the light most favorable to the nonmoving party. Craigs, Inc. v. General Elec. Capital Corp., 12 F.3d 686, 688 (7th Cir. 1993). However, the court is neither bound by the plaintiffs' legal characterization of the facts, nor required to ignore facts set forth in the complaint that undermine the plaintiffs' claims. Scott v. O'Grady, 975 F.2d 366, 368 (7th Cir. 1992), cert. denied, 508 U.S. 942, 124 L. Ed. 2d 643, 113 S. Ct. 2421 (1993).
The Ho Chunk Nation (Ho Chunk), formerly known as the Winnebago Indian Tribe, is a Native American tribe recognized by the Bureau of Indian Affairs. Native American Arts, Inc. (NAA) is an Indian arts and crafts organization as defined by 25 U.S.C. § 305e(d)(4). NAA is a wholly owned Native American arts and crafts organization, comprised of members of the Ho Chunk Nation which distributes authentic Native American arts and crafts. Village Originals operates retail stores which display and sell arts, crafts, and jewelry throughout the United States. Village Originals is not an Indian arts and crafts organization.
The primary basis for the plaintiffs' case is violation of the Indian Arts and Craft Act of 1990 (IACA), 25 U.S.C. § 305(a). The IACA imposes civil liability upon an individual who "offers or displays for sale or sells a good, with or without a Government trademark, in a manner that falsely suggests it is Indian produced, an Indian product, or the product of a particular Indian or Indian tribe or Indian arts and crafts organization . . . ." The thrust of the plaintiffs' complaint is that Village Originals displays and falsely represents that some of its products were manufactured by Native American when, in fact, they were not, in violation of § 305e and Illinois law. The court will now address Village Originals' separate arguments for dismissal.
In Counts I & II, Ho Chunk brings a private right of action on behalf of NAA. Count I is styled as a claim brought under the "Indian Arts and Craft Act," while Count II alleges "Negligent Violation of the Indian Arts and Craft Act." Village Originals moves to dismiss both counts, arguing that: (1) NAA lacks standing to sue or to be a party in suit; (2) that the plaintiffs' allegations as to count I are insufficient to plead a "false suggestion" claim under the IACA; (3) that the IACA is unconstitutional regulation of commercial speech; and (4) that the IACA does not create a cause of action for negligent violation of the statute.
Village Originals' standing argument is unpersuasive. The amended complaint clearly indicates that the IACA claims are being brought by Ho Chunk on behalf of Native American Arts. Section ...