On Friday, a federal appeals court ruled in favor of the city of Berkeley, allowing the city to uphold the law requiring radiation warning signs in all cell phone stores within the city limits.
The CTIA, the cell phone industry trade group, sued the city to prevent the law from going into effect by asking a lower court to issue a preliminary injunction. The group argued that forcing retailers to display the warning (pictured below) amounts to coercion, which violates the First Amendment. After the district court failed to enforce the order, the CTIA appealed to the 9th U.S. Circuit Court of Appeals.
The 9th Circuit concluded that Berkeley’s disclosure “did little more than alert consumers” to FCC safety disclosures.
The CTIA did everything it could to prevent this law from going into effect. It even hired Ted Olson, a former Solicitor General under the George W. Bush administration, to plead on its behalf.
“There’s a reason why Berkeley put the word ‘security’ 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 to a full panel of judges of the 9th Circuit, or appealed to the Supreme Court.
Three letters: SAR
As Ars also previously reported, little to no current science supports the need for the warnings Berkeley mandates. There is no well-described mechanism by which non-ionizing radiation can cause long-term biological changes, although it can cause tissue heating in the short term. There’s also no clear evidence that wireless hardware poses health risks in the first place, raising questions about exactly what the city’s legislation is supposed to accomplish.
The city seemed to feel the need to inform cell phone customers about exactly what kind of radiation all phones emit. One of the main ways radiation from a phone is measured is through something called the “Specific Absorption Rate” (SAR) – in other words, how quickly a given amount of energy is absorbed by the human body, measured in watts per kilograms.
Since 1996, the FCC has required all cell phones sold in the United States not to exceed a SAR limit of 1.6 watts per kilogram (W/kg), averaged over one gram of tissue. On most phones, the SAR value for a particular handset is not clear at all. For example, on the iPhone 6S Plus, the author’s phone, the information is buried four menus deep. Even then, I still have to click another link.
The CTIA sued Berkeley, arguing that, like a similar law passed in San Francisco in 2010 (which was overturned in court), the warning would essentially deter customers from owning cell phones. Among other concerns, the CTIA argued that the phrase “RF radiation” is enough to ring alarm bells. The organization asked the court for a preliminary injunction not to allow the law to go into effect, which the court refused to do.
In its decision Friday, the 9th Circuit conducted a line-by-line analysis of the actual warning sign. The court ruled that language like “RF radiation” is actually “largely reassuring” because it tells potential buyers that the phones they are buying meet or exceed safety regulations.
Aside from that, the court also noted that the CTIA had not provided “evidence showing that cell phone sales in Berkeley were, or are likely to be, pressured as a result of the forced disclosure.”
A different voice
One of the three judges on the 9th Circuit panel, Circuit Judge Michelle Friedland, who happened to be a Berkeley native, disagreed with the majority.
She found that while the sentences in Berkeley’s warning are “literally true” when taken one at a time, “this approach through the trees misses the forest.”
She wrote: “The message of the disclosure as a whole is clear: Carrying a phone ‘in a trouser or shirt pocket or tucked away in a bra’ is not safe. Yet that implication is a problem for Berkeley because it lacks any evidence that it is in fact unsafe to carry a mobile phone in a pocket.”
Judge Friedland concluded, “If Berkeley wants consumers to heed its warnings, it must remain silent until it is willing to present evidence of a wolf.”
UPDATE 5:32 PM ET: Justin Cole, a spokesman for the CTIA, sent Ars a statement saying that “there is no evidence of harmful effects caused by cell phones,” and further indicated that it supported Judge Friedland’s dissenting opinion.