Wireless association CTIA was handed a legal defeat last Friday by a three judge panel of the Ninth Circuit Court, which rejected CTIA’s appeal of a lower court’s denial of injunctive relief against a City of Berkeley, California ordinance requiring mobile handset retailers to inform customers about radio frequency exposure and other alleged health risks associated with cell phone use.
The case at hand stems from the March 2016 enactment of a Berkeley, California “right to know” law which requires handset retailers in that city to provide customers with an educational leaflet on cell phone safety. In part, the leaflet in question informs cell phone customers that “if you carry or use your phone in a pants or shirt pocket or tucked into a bra when the phone is ON and connected to a wireless network, you may exceed the federal guidelines for exposure to RF radiation.” The leaflet further advises customers to “refer to the instructions in your phone or user manual for information about how to use your phone safely.”
CTIA filed a legal challenge against the Berkeley ordinance at the U.S. District Court for the Northern District of California, arguing that the directive violates the First Amendment and federal law by requiring retailers “to make unsubstantiated claims and false statements about the alleged effects of cellphones, which would contradict the findings from independent health and scientific organizations.” Although the district court initially blocked enforcement of the ordinance based on a sentence that specified that the potential health risks of cell phone use are “greater for children,” the court lifted the injunction after the City of Berkeley agreed to remove that language from the mandated safety warning.
Predicting that CTIA’s First Amendment claim now pending before the district court “is unlikely to succeed,” a majority of the Ninth Circuit panel declined CTIA’s motion to reinstate injunctive relief. In a 37-page opinion, the majority held that the record “provides no evidence to support a finding of economic or reputational harm to cellphone retailers” that would stem from the ordinance. Observing that “Berkeley’s compelled disclosure does no more than alert customers to the safety disclosures that the FCC requires,” the majority concluded that, “far from conflicting with federal law and policy, the Berkeley ordinance compliments and reinforces it.” In a dissenting statement, however, Circuit Judge Michelle Friedland countered that the ordinance may, in fact, infringe upon First Amendment protections by effectively forcing cell phone retailers to make misleading statements about their products. Though acknowledging the majority’s interpretation that each of the sentences contained in the ordinance may be “literally true,” Friedland maintained that consumers who would naturally take the language of the ordinance “as a whole” may be left with the misleading impression that “carrying a cell phone in a pocket is, in fact, unsafe.”