Berkeley’s cellphone radiation warning law will stand, appeals court finds  4/21/2017 7:50:38 PM   Cyrus Farivar
Enlarge / Berkeley, California, as seen in June 2013.

On Friday, a federal appeals court ruled in favor of the City of Berkeley, allowing the city to keep its law that requires radiation warning signs in all cellphone stores within the city limits.

The CTIA, the cellphone industry trade group, sued the city to stop the law from taking effect by asking a lower court to impose a preliminary injunction. The group argued that forcing retailers to display the warning (pictured below) constituted compelled speech, which violates the First Amendment. After the district court didn't impose the injunction, the CTIA appealed to the 9th US Circuit Court of Appeals.

The 9th Circuit concluded the following:

Berkeley's compelled disclosure did no more than alert consumers to the safety disclosures that the Federal Communication Commission requires and to direct consumers to federally compelled instructions in their user manuals providing specific information about how to avoid excessive exposure. The panel held that, far from conflicting with federal law and policy, the Berkeley ordinance complements and reinforces it.

The CTIA went to great lengths to try to stop this law from being enacted. It even hired Ted Olson, a former solicitor general under the George W. Bush administration, to argue on its behalf.

"There's a reason why Berkeley put the word 'safety' in there," he told the 9th Circuit last year. "It's to send an alarm."

The organization did not immediately respond to Ars' request for comment.

The case can now be appealed further to a full panel of 9th Circuit judges, or it could be appealed up to the Supreme Court.

Three letters: SAR

As Ars also reported previously, it's important to note that there really isn’t any current science to support the need for the warnings Berkeley is mandating. There's no well-described mechanism by which non-ionizing radiation can induce long-term biological changes, although it can cause short-term heating of tissues. There are also no clear indications that wireless hardware creates any health risks in the first place, which raises questions of what, exactly, the city's legislation was supposed to accomplish.

The city seemed to feel the need to point cellphone customers to educate themselves about exactly what kind of radiation all phones release. Specifically, one of the primary ways that radiation from a phone is measured is through something called the Specific Absorption Rate (SAR)—in other words, how fast a given amount of energy is absorbed by the human body, measured in watts per kilogram.

Since 1996, the FCC has required that all cell phones sold in the United States not exceed a SAR limit of 1.6 watts per kilogram (W/kg), as averaged over one gram of tissue. On most phones, it’s not at all obvious what the SAR value for a given handset is. On the iPhone 6S Plus—the author’s phone—for instance, the information is buried four menus deep, and even then requires clicking yet another link.

The CTIA sued Berkeley, arguing that like a similar law passed in San Francisco in 2010 (which was defeated in court), that the warning would essentially scare customers away from owning cellphones. The organization asked the district court to impose a preliminary injunction to stop the law from going into effect, which it declined to do.

In its Friday decision, the 9th Circuit conducted a line-by-line analysis of the actual warning sign.

Among other concerns, the CTIA argued that the phrase "RF radiation" is enough to send alarm bells ringing.

As the court found:

We read the text differently. The first sentence tells consumers that cell phones are required to meet federal “RF exposure guidelines” in order “[t]o assure safety.” Far from inflammatory, this statement is largely reassuring. It assures consumers that the cell phones they are about to buy or lease meet federally imposed safety guidelines. The second sentence tells consumers what to do in order to avoid exceeding federal guidelines. This statement may not be reassuring, but it is hardly inflammatory. It provides in summary form information that the FCC has concluded that consumers should know in order to ensure their safety.

Beyond that, the court also noted that the CTIA had presented no "evidence showing that sales of cell phones in Berkeley were, or are likely to be, depressed as a result of the compelled disclosure."

A dissenting voice

One of the three judges on the 9th Circuit panel, District Judge Michelle Friedland, who by coincidence was born in Berkeley, dissented from the majority.

She found that while the sentences in Berkeley's warning are "literally true" when taken one at a time, "this approach misses the forest for the trees."

As she wrote:

On its face, the disclosure begins and ends with references to safety, plainly conveying that the intervening language describes something unsafe. Indeed, the disclosure directs consumers to their user manuals for instructions on “how to use your phone safely.” The message of the disclosure as a whole is clear: carrying a phone “in a pants or shirt pocket or tucked into a bra” is not safe. Yet that implication is a problem for Berkeley because it has not offered any evidence that carrying a cell phone in a pocket is in fact unsafe. Instead, it has expressly denied that the required disclosure conveys that message. I disagree.

If Berkeley wants consumers to listen to its warnings, it should stay quiet until it is prepared to present evidence of a wolf.

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