Wireless association CTIA was handed a legal victory on Tuesday by the Ninth Circuit Court of Appeals, which remanded a district court ruling that permitted the City of San Francisco to revise and enforce an ordinance that requires cell phone retailers to include labels on handsets specifying the level of radio frequency (RF) emissions. Touted as the first regulation of its kind in the nation, the ordinance, enacted in October 2011, amended a city law adopted in 2010 that required retailers to disclose the specific absorption rate (SAR) and the FCC’s maximum allowable SAR value for wireless handsets to prospective buyers. The revised ordinance, however, went further, requiring retailers to display posters that outline the possible health risks of cell phone use and to provide customers with fact sheets that suggest ways in which exposure to RF emissions can be reduced. Charging that the revised ordinance violates First Amendment rights to free speech, CTIA filed suit before the U.S. District Court for the Northern District of California, complaining that retailers are required to distribute “misleading statements and graphics that send the false message that cell phones approved by the FCC are not safe.” Agreeing that the warnings required by the city convey the “untrue and misleading” impression that “cell phones are dangerous,” the lower court blocked provisions of the revised ordinance that require display posters and warning stickers but said the city could require distribution of fact sheets in which certain graphic images are removed. Addressing appeals brought by both CTIA and the city, the three-judge appellate panel ruled in favor of CTIA’s contention that the consumer fact sheet, as modified by the lower court, was not “purely factual and uncontroversial.” Citing a previous Supreme Court ruling in which the justices decreed that governments may only require businesses to display factual, undisputed information about their products, the panel determined that the revised fact sheets appear to contravene FCC findings that cell phones are safe as long as RF emissions remain within the agency’s prescribed limits. As such, the appellate panel concluded that the fact sheet “contains more than just facts” and expresses the city’s opinion “that using cell phones is dangerous.”
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Appeals court remands San Francisco ordinance on cell phone labeling
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