CTIA Battles City of Berkeley in Court Over Cell Phone Labeling Law

Whether and how cell phones emit dangerous levels of RF radiation when consumers use them is at the heart of a court fight in the San Francisco market. During Tuesday’s argument, two members of the Ninth Circuit panel openly questioned how the city came to its conclusion. All three appellate judges said at some point during the argument that the ordinance could lead consumers to the incorrect conclusion that federal regulators have determined that carrying a cell phone in your pocket is a health hazard, according to The Recorder.

The city of Berkeley requires cell phone retailers to warn consumers they may exceed FCC guidelines if they keep an activated cell phone too close to their bodies. The “Cell Phone Right-to-Know” ordinance required retailers that sold or leased cell phones to place sticker warnings on in-store displays, hang 11-by-17-inch posters, and distribute fact sheets to purchasers and would-be purchasers. These materials cited World Health Organization studies that have classified the energy emitted by cell phones as a “possible carcinogen.”

Wireless association CTIA countered that the claim is scientifically baseless and unconstitutional compelled speech and issued suit against Berkeley last June on First Amendment grounds.

A federal court judge upheld the law last year, finding a line about a greater risk concerning RF radiation exposure to children was baseless, reports the Courthouse News Service.

Berkeley removed the line about the risk to children and the stay was lifted. But then the wireless association appealed, recently asking a three-judge panel to reverse the ruling. The message “is intended to persuade” and change consumer conduct, argued CTIA attorney Theodore Olson. “It’s not a disclosure. It’s a point of view.” But an attorney for the city of Berkeley, Harvard Law professor Lester Lessig III, said the warning cites established FCC guidelines and can’t be considered false or misleading, according to the account.

Olson countered Berkeley hasn’t proved cell phones are not safe even if in a consumer’s pocket or purse, arguing the words “safety” and “radiation” in the warning give an unfair impression to consumers. Lessig meanwhile said Berkeley left out mentions of potentially cancer-causing effects of cell phone RF radiation after a San Francisco ordinance containing that reference was struck down in federal court in 2011.

San Francisco eventually dropped its cell phone warning law in 2013 in a prior settlement with CTIA.

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