*

Judge King heard oral argument in this case but recused

himself thereafter. The decision is filed by a quorum of the

panel. 28 U.S.C. § 46(d).

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 07-1008

PHYSICIANS COMMITTEE FOR RESPONSIBLE MEDICINE; CATHERINE

HOLMES,

Plaintiffs - Appellants,

v.

GENERAL MILLS, INC.; DANNON COMPANY, INCORPORATED; MCNEIL

NUTRITIONALS, LLC; INTERNATIONAL DAIRY FOODS ASSOCIATION;

DAIRY MANAGEMENT, INCORPORATED; NATIONAL DAIRY COUNCIL;

LIFEWAY FOODS, INCORPORATED,

Defendants - Appellees.

-------------------------

WASHINGTON LEGAL FOUNDATION; UNITED STATES OF AMERICA,

Amici Supporting Appellees.

Appeal from the United States District Court for the Eastern

District of Virginia, at Alexandria. Leonie M. Brinkema, District

Judge. (1:05-cv-00958-LMB)

Argued: March 19, 2008 Decided: June 19, 2008

Before NIEMEYER and KING,* Circuit Judges, and David R. HANSEN,

Senior Circuit Judge of the United States Court of Appeals for the

Eighth Circuit, sitting by designation.
2

Affirmed by unpublished opinion. Judge Niemeyer wrote the opinion,

in which Senior Judge Hansen joined.

ARGUED: Daniel Kinburn, PHYSICIANS COMMITTEE FOR RESPONSIBLE

MEDICINE, Washington, D.C., for Appellants. Steven J. Rosenbaum,

COVINGTON & BURLING, Washington, D.C., for Appellees. ON BRIEF:

Bernard J. DiMuro, John M. Tran, DIMUROGINSBERG, P.C., Alexandria,

Virginia, for Appellants. Joshua D. Wolson, COVINGTON & BURLING,

Washington, D.C., for Appellees; Richard Rossier, Alex Menendez,

MCLEOD, WATKINSON & MILLER, Washington, D.C., for Appellees Dairy

Management, Incorporated, and National Dairy Council; Matthew R.

Estabrook, Andrew S. Tulumello, Claudia M. Osorio, GIBSON, DUNN &

CRUTCHER, L.L.P., Washington, D.C., for Appellee General Mills,

Inc.; Craig A. Hoover, E. Desmond Hogan, HOGAN & HARTSON, L.L.P.,

Washington, D.C., for Appellee Dannon Company, Incorporated; Brian

D. Boyle, S. Bradley Perkins, O’MELVENY & MYERS, L.L.P.,

Washington, D.C., for Appellee McNeil Nutritionals, L.L.C.; David

J. Gogal, BLANKINGSHIP & KEITH, P.C., Fairfax, Virginia, for

Appellee Lifeway Foods, Incorporated. Daniel J. Popeo, Richard A.

Samp, WASHINGTON LEGAL FOUNDATION, Washington, D.C., for Washington

Legal Foundation, Amicus Supporting Appellees. Peter D. Keisler,

Assistant Attorney General, Chuck Rosenberg, United States

Attorney, Douglas N. Letter, Appellate Staff, Civil Division,

August E. Flentje, Appellate Staff, Civil Division, UNITED STATES

DEPARTMENT OF JUSTICE, Washington, D.C., for the United States,

Amicus Supporting Appellees.

Unpublished opinions are not binding precedent in this circuit.
3

NIEMEYER, Circuit Judge:

Catherine Holmes and Physicians Committee for Responsible

Medicine commenced this class action against numerous dairy

producers and trade associations, alleging that the defendants’

industry-wide advertising campaign, which in essence stated that

consuming 24 ounces of dairy products per day would promote weight

loss, constituted false and deceptive advertising, in violation of

the Virginia Consumer Protection Act (“VCPA”), Va. Code Ann. §

59.1-196 et seq. and Virginia’s false advertising statute (“VFAS”),

Va. Code Ann. §§ 18.2-216, 59.1-68.2 to 51.9-68.5. The plaintiffs

sought a permanent injunction prohibiting future advertising

containing weight-loss claims and a mandatory injunction requiring

the defendants to undertake a “corrective market campaign” stating

that consumption of dairy products would either cause weight gain

or at best have no effect. In addition, Holmes demanded damages.

The district court granted the defendants’ motion to dismiss

the complaint on various grounds. The only grounds relevant to

this appeal are the district court’s conclusions that neither

Virginia statute authorizes an action by a private plaintiff for

injunctive relief and that the doctrine of primary jurisdiction

applied to this case, because the plaintiffs appealed only those

rulings.
4

Because we agree with the district court’s reading of the two

Virginia statutes, we affirm on that ground and do not reach the

second issue of primary jurisdiction.

I

Count I of the complaint was brought under the VCPA, which

declares unlawful a broad range of “fraudulent acts or practices”

by a supplier, including “[m]isrepresenting that goods or services

have certain quantities, characteristics, ingredients, uses, or

benefits” and “[u]sing any other deception, fraud, false pretense,

false promise, or misrepresentation” in connection with a consumer

transaction. Va. Code Ann. § 59.1-200(A)(5), (14). For their

claim for injunctive relief, the plaintiffs rely on § 59.1-203,

which authorizes suits for injunctions as follows:

A. Notwithstanding any other provisions of law to

the contrary, the Attorney General, any attorney for the

Commonwealth, or the attorney for any city, county, or

town may cause an action to be brought in the appropriate

circuit court in the name of the Commonwealth, or of the

county, city, or town to enjoin any violation of §

59.1-200. The circuit court having jurisdiction may

enjoin such violations notwithstanding the existence of

an adequate remedy at law. In any action under this

section, it shall not be necessary that damages be

proved.

B. Unless the Attorney General . . . determines that

a person subject to the provisions of this chapter

intends to depart from this Commonwealth or to remove his

property herefrom . . . he shall, before initiating any

legal proceedings as provided in this section, give

notice in writing that such proceedings are

contemplated . . . .
5

C. The circuit courts are authorized to issue

temporary or permanent injunctions to restrain and

prevent violations of § 59.1-200.

D. The Commissioner of the Department of Agriculture

and Consumer Services . . . shall have the power to

inquire into possible violations of § 59.1-200, and, if

necessary, to request, but not to require, an appropriate

legal official to bring an action to enjoin such

violation.

(Emphasis added).

Even though § 59.1-203 grants no explicit authority to private

parties to obtain injunctive relief for violations of the VCPA, the

plaintiffs argue that subsection (C) stands separately and by

implication authorizes private suits for injunctive relief. As

they explain:

[Section 59.1-203(A)] provides that the Attorney General

or any other public prosecutor may bring an action to

enjoin violations of the statute, “notwithstanding the

existence of an adequate remedy at law. . . .” In

contrast to § 59.1-203A, subsection C provides that “the

circuit courts are authorized to issue temporary or

permanent injunctions to restrain and prevent

violations.” This provision allows private parties to

seek such relief . . . .

* * *

The reason for the lack of detail in Subsection C is

apparent from review of the fundamental requirements for

obtaining injunctive relief -- whether the legal remedy

of damages is adequate to cure an irreparable harm that

has been suffered. . . . In providing [in subsection A]

that public prosecutors may obtain an injunction,

“notwithstanding the existence of an adequate remedy at

law,” the Virginia legislature is making a distinction

between those who are exempted from the general proof

requirement for injunctive relief and those who are not.

It follows that subsection C is included to allow for

injunctive action for those [private parties], such as
6

Appellants, who must prove that their legal remedies are

inadequate.

The plaintiffs’ arguments must be rejected for several

reasons. Although § 59.1-203(C) standing alone does, indeed, not

specify who may seek the injunctions that the “circuit courts are

authorized to issue,” id., when that subsection is viewed in the

context of § 59.1-203 as a whole, as well as within the overall

structure of the VCPA, it becomes apparent that the Act provides no

private cause of action for injunctive relief.

First, we begin by observing that no language in § 59.1-203

explicitly authorizes private suits for injunctions, and certainly

no language does so with the clarity of language used in § 59.1-

204(A), which does authorize private suits, but only for damages or

a penalty. Section 59.1-204, entitled “Individual action for

damages or penalty,” states broadly that “[a]ny person” who suffers

loss may bring an action to recover “actual damages” or a $500

penalty, “whichever is greater.” In contrast, § 59.1-203 refers

narrowly to the ability of “the Attorney General, any attorney for

the Commonwealth, or the attorney for any city, county, or town” to

bring suits for injunction. It is “significant that the General

Assembly . . . chose not to use language parallel” to § 59.1-204 in

defining the cause of action in § 59.1-203. Rectors & Visitors of

Univ. of Va. v. Harris, 387 S.E.2d 772, 775 (Va. 1990). Since §§

59.1-203 and 59.1-204 are part of a common and comprehensive

statutory scheme, we conclude that the better reading of this
7

narrowly-tailored language in the VCPA is that two distinct classes

of plaintiffs -- public officials on the one hand, and private

parties on the other -- are authorized to seek two different kinds

of relief. See, e.g., H. D. Oliver Funeral Apartments, Inc. v.

Dignity Funeral Servs., Inc., 964 F. Supp 1033, 1039 (E.D. Va.

1997) (“Nor is there any provision in the VCPA authorizing Oliver

to seek an injunction against Altmeyer [for conduct allegedly

violating the statute]”); VNB Capital Corp. v. Fisher, 1982 WL

215231 at *5 (Va. Cir. Ct. 1982) (“Although the primary enforcement

mechanism provided in the VCPA is that of injunctive and civil

actions prosecuted by the Attorney General or local enforcement

officials, Va. Code §§ 59.1-201, 59.1-202, 59.1-203 and 59.1-206,

the Act also provides for individual consumer remedies of damages

and restitution[,] Va. Code §§ 59.1-204, 59.1-205 and 59.1-207”).

Second, even though § 59.1-203(C) does not contain an explicit

statement of who can sue for injunctive relief, it cannot for that

reason be properly read to contain an implicit authorization for

private actions for injunctive relief. Subsection (C) is not a

free-standing provision; rather, it is part of § 59.1-203 as a

whole and follows subsection (A), which authorizes only public

officials -- “the Attorney General, any attorney for the

Commonwealth, or the attorney for any city, county, or town” -- to

seek an injunction “in the name of the Commonwealth, or of the

county, city, or town.” Likewise, it follows subsection (B), which
8

speaks of what measures the Attorney General and other public

officials must take before bringing a suit for injunction as

authorized by subsection (A). Va. Code Ann. § 59.1-203(B). And no

mention of any private cause of action is present in subsection

(D), which follows subsection (C) and again relates to when an

officer of the Commonwealth may request that another public

official bring a suit authorized by subsection (A) to enjoin

conduct in violation of the VCPA. Id. § 59.1-203(D). Given that

subsection (C) follows subsection (A)’s authorization of suits by

public officials and is found between two other subsections

unambiguously dealing with the power of public officials to seek

injunctions under subsection (A), the plain and natural reading of

subsection (C) is that it, too, qualifies subsection (A) and

concerns suits brought by public officials thereunder.

The plaintiffs argue that this reading renders subsection (C)

surplusage, because subsection (A) already authorizes injunctions.

While subsection (A) of § 59.1-203 does provide that the circuit

courts may issue injunctions in suits brought by public officials

without regard to traditional equitable requirements, such as proof

of damages and inadequacy of remedies at law, it is silent as to

the type of injunction that may be granted. Subsection (C)

therefore qualifies subsection (A) by stating specifically that

either “temporary or permanent” injunctions may be issued in suits

by public officials, as the Virginia legislature has repeatedly
9

chosen to state elsewhere in the Virginia Code despite the seeming

obviousness of that fact. See, e.g., Va. Code Ann. § 3.1-296.21

(authorizing court to grant, upon application, “a temporary or

permanent injunction”); id. § 3.1-106.17 (same); id. § 3.1-828.13

(same); id. § 56-525 (same). Thus, despite the plaintiffs’

argument that subsection (A)’s authorization of suits for

injunction means that “[i]t goes without saying that . . . the

courts may issue either temporary or permanent injunctions,” the

General Assembly’s decision to make explicit in subsection (C) what

the plaintiffs would have us assume in subsection (A) cannot

somehow render that legislative statement surplusage.

Third, the bifurcated remedy scheme of the VCPA, whereby

individuals may sue for damages under § 59.1-204 and government

officials may sue for injunctions under § 59.1-203, is reflected

and assumed in other provisions of the VCPA. Subsection (A) of §

59.1-204.1, for example, provides a two-year statute of limitations

for “[a]ny individual action pursuant to § 59.1-204,” the VCPA

damages provision. (Emphasis added). This statute of limitations

makes no mention of a time limitation for individual suits for

injunctions under § 59.1-203, suggesting that such individual suits

for injunctions are not contemplated under the VCPA. Likewise,

§ 59.1-204.1(B) tolls the limitations period for individual actions

when “any of the authorized government agencies” files suit, but

only for individual “action[s] under § 59.1-204.” (Emphasis
10

added). Section 59.1-206, another provision of the VCPA, refers to

the ability of “the Attorney General, the attorney for the

Commonwealth, or the attorney for the county, city, or town” to

recover civil penalties for violations of injunctions issued under

§ 59.1-203, but it makes no mention of a similar recovery by

private parties seeking injunctions. And § 59.1-207, which

concerns unintentional violations of the VCPA, states that

attorney’s fees and costs may be awarded to “individuals aggrieved”

“pursuant to § 59.1-204 B,” the damages provision, but makes no

mention of awarding similar costs of suit for individuals suing

under § 59.1-203.

It is apparent from this statutory structure that damage suits

under § 59.1-204 are the private remedy authorized by the VCPA, and

that no corresponding cause of action for private suits exists

under § 59.1-203.

For these reasons, we agree with the district court that the

plaintiffs were not authorized to bring claims for injunctive

relief under the VCPA and therefore it was appropriate for the

district court to have dismissed the claim.

II

Count II of the complaint was brought under the VFAS, which,

in relevant part, makes it a misdemeanor to use “any promise,

assertion, representation or statement of fact which is untrue,
11

deceptive or misleading” in connection with certain advertisements

to the public. Va. Code Ann. § 18.2-216. 

Like the VCPA, the false advertising statute contains a

bifurcated remedy scheme, whereby government officials may seek to

enjoin violative conduct and individuals may seek damages. Va.

Code Ann. §§ 59.1-68.2 to 59.1-68.5. The statute contains two

remedial provisions concerning injunctions, both of which

undisputedly authorize only suits by public officials. The first

of these states that “the Attorney General may investigate and

bring an action in the name of the Commonwealth to enjoin any

violation of [the statute].” Id. § 59.1-68.2 (emphasis added). And

the second provides that “any attorney for the Commonwealth, or the

attorney for any city or county, may investigate and cause to be

brought suit in the name of the Commonwealth, or of the county or

city, to enjoin any violation of [the statute].” Id. § 59.1-68.4

(emphasis added). In contrast, each of the VFAS damages

provisions, §§ 59.1-68.3 and 59.1-68.5, allows “[a]ny person who

suffers loss” as a result of a violation of the VFAS to “bring an

individual action to recover damages, or $100, whichever is

greater.” Id. §§ 59.1-68.3, 59.1-68.5 (emphasis added).

In light of the unambiguous language of the two VFAS

injunction provisions, the plaintiffs do not contend that any

statutory text directly authorizes a private suit for injunctive

relief. Rather, they argue that “[b]ecause injunctive relief is a
12

standard remedy when legal remedies are not adequate, it may be

said that injunctive relief is an implicit extension of any statute

granting damages,” and that there is therefore an “implied right to

injunctive relief pursuant to Va. Code Ann. §§ 59.1-68.3 and 59.1

68.5,” the VFAS damages provisions. (Emphasis added). But as with

the VCPA, the explicitly bifurcated structure of the statute, as

well as the distinct language used to create a cause of action for

damages that may be brought by “[a]ny person who suffers loss” and

a cause of action for injunctive relief that may be brought by only

specifically named public officials, indicates that there can be no

such implied right. Compare Va. Code Ann. §§ 59.1-68.3 and 59.1-

68.5 (damages) with id. §§ 59.1-68.2 and 69.1-68.4 (injunctions).

In addition, § 59.1-68.3 itself states that in an individual action

for damages under the false advertising statute, exhibits from any

action “in which the Attorney General has obtained a permanent

injunction” may be introduced into evidence. (Emphasis added); see

also § 59.1-68.5 (noting same where “the Commonwealth, or a county

or city has obtained a permanent injunction”) (emphasis added).

The inclusion of this language in the statute, with no proviso made

for introduction of evidence from private suits for injunction,

belies the plaintiffs’ contention that the legislature implicitly

intended to authorize private claims for injunctive relief.

With this statutory language and structure, we are not free to

imply a private equitable remedy. The statute reveals a conscious
13

choice by the Virginia legislature to limit its availability to

suits by public officials. See Sch. Bd. of City of Norfolk v.

Giannoutsos, 380 S.E.2d 647, 649 (Va. 1989) (“[W]here a statute

creates a right and provides a remedy for the vindication of that

right, then that remedy is exclusive unless the statute says

otherwise”).

The plaintiffs nonetheless contend additionally that an

independent basis for obtaining private injunctive relief exists

under the Virginia false advertising statute because it is a

criminal statute. They base their position on Black & White Cars,

Inc. v. Groome Transportation, Inc., 442 S.E.2d 391 (Va. 1994),

arguing that in that case “the Virginia Supreme Court recognized

that an injunction may issue to private parties where violation of

a penal statute results in damages that would be difficult to

quantify,” even where the statute does not specifically authorize

such equitable relief for private parties. But the plaintiffs read

Black & White Cars too broadly.

In that case, the plaintiff taxicab companies sought an

injunction against an unlicensed competitor who was advertising as

a taxi service, in violation of a Norfolk city ordinance. Black &

White Cars, 442 S.E.2d at 393. Although the court permitted the

plaintiffs to obtain an injunction, it began by noting that “the

general rule” was “that a penal statute or ordinance does not

automatically create a private right of action, and that equity
14

will not enter an injunction merely because such a statute has been

violated.” Id. at 394. Importantly, the court’s reason for

finding an exception to this general rule was the principle that

“an injunction is appropriate relief where violation of a penal

statute or penal ordinance results in special damage to property

rights which would be difficult to quantify.” Id. (emphasis

added). The taxicab companies, as franchisees of the city holding

“valuable property rights” in their licenses, made this showing.

Id. at 395. For this distinguishable reason, Black & White Cars

was noted to be an exception to the general rule.

In this case the plaintiffs have not alleged the existence of

any property right akin to the taxi franchises in Black & White

Cars that could suffer special damage by a violation of the VFAS,

an omission that is fatal to their argument. Moreover, reading a

private equitable cause of action into the VFAS under Black & White

Cars would be particularly inappropriate where, as here, the

statute is not silent as to whether a private cause of action

exists, but rather explicitly authorizes a private cause of action

that is limited to only damages.

Because neither the VCPA nor the VFAS permits a private suit

for injunctive relief, we affirm the order of the district court

dismissing the plaintiff’s claims for injunctive relief. And
15

because we rely on this ground to affirm, we do not reach the issue

of primary jurisdiction.

AFFIRMED