Local governments are increasingly seeking to regulate consumer products -- everything from toys and cell phones, to soda and pharmaceuticals.  But hardly before the ink can dry on these ordinances, business groups sue to block them, relying primarily on principles of free speech, federal preemption, and interstate commerce.

Most recently, CTIA – The Wireless Association sued Berkeley, California over its May 26, 2015 cell phone ordinance.  The law requires cell phone retailers to provide consumers with a notice that if they carry the phone in a pocket or under their clothing while the phone is on, they may exceed the federal guidelines for exposure to radio frequency radiation.  The CTIA lawsuit alleges that the statement is “compelled speech” that is “not only scientifically baseless and alarmist, but . . . also contradicts the federal government’s determination that cell phones approved for sale in the United States, however worn, are safe for everyone.”

CTIA has been successful challenging similar—albeit broader—ordinances in the past.  When San Francisco passed a “Cell Phone Right to Know” ordinance requiring cell phone retailers to inform customers about measures to reduce exposure to radiation, CTIA sued in federal court on First Amendment and preemption grounds.  The district court denied the bulk of CTIA’s federal preemption and free speech while requiring San Francisco to revise its fact sheet, but the Ninth Circuit, in an unpublished opinion, reversed, citing FCC regulations and noting that the agency “has established limits of radiofrequency energy exposure, within which it has concluded using cell phones is safe.”  The court also noted that “San Francisco concedes that there is no evidence of cancer caused by cell phones” and that therefore the fact sheet cannot be said to be “purely factual and uncontroversial.”  Accordingly, San Francisco was forced to drop the ordinance.

Cell phones aren’t the only products being regulated by local governments.  Recently, Albany and Westchester counties in New York State passed local laws banning certain children’s products and apparel allegedly containing toxic chemicals such as lead and mercury.  In Albany County, toy industry groups have already filed suit in federal court (with Arnold & Porter as lead counsel), arguing that the ban is preempted by federal law.

And the county in which Berkeley is situated initiated a trend in local regulation by requiring pharmaceutical manufacturers to establish programs for taking back unused products and educating consumers not to throw them away.  PhRMA, the trade association of pharmaceutical companies, sued to block this ordinance, but once the Ninth Circuit rejected that challenge, other localities -- including San Francisco -- began implementing similar programs.

San Francisco soon might find itself in another legal battle over its regulations, as supervisors this week approved an ordinance that would require warnings on print advertising for products such as sodas with over 25 calories per 12 ounces.  The label would read: “WARNING: Drinking beverages with added sugar(s) contributes to obesity, diabetes, and tooth decay.  This is a message from the City and County of San Francisco.”  The beverage industry has already indicated that it might sue if such a measure ultimately becomes law. 

Industry groups have demonstrated that they are willing to fight these local ordinances, and—at least in CTIA’s case—their lawsuits have seen some success.  But local governments appear to learn from past failures and are attempting to tailor their messages, no doubt in anticipation of legal battles ahead.