After High Court Remand, Ninth Circuit Upholds Cellphone Warning Law

SAN FRANCISCO (CN) – On remand from the U.S. Supreme Court, the Ninth Circuit on Tuesday upheld a Berkeley, California, law that forces retailers to warn consumers about the potential health risks of cellphone radiation.

Last year, the Supreme Court vacated a prior ruling upholding the challenged law and sent the case back to the Ninth Circuit, mandating reconsideration in light of the high court’s decision to strike down California’s required disclosures on abortions services in National Institute of Family and Life Advocates (NIFLA) v. Becerra in June 2018.

On Tuesday, a divided three-judge panel again upheld the Berkeley law, finding the cellphone warning serves a legitimate government interest – to protect public health – and is not "controversial" as the Supreme Court defined it in its 2018 decision.

In NIFLA, the Supreme Court held that forcing anti-abortion clinics to tell women about state-sponsored abortion services was "anything but an 'uncontroversial' topic.'"

Writing for the majority, U.S. Circuit Judge William Fletcher said the panel did not view the Supreme Court's decision as finding that "any purely factual statement that can be tied in some way to a controversial issue is, for that reason alone, controversial."

Rather, the panel's majority found the Supreme Court had defined a "controversial" message as one that takes sides in a heated political controversy, such as abortion rights.

"Berkeley’s required disclosure is uncontroversial within the meaning of NIFLA," Fletcher wrote in a 42-page opinion. "It does not force cell phone retailers to take sides in a heated political controversy."

As previously held in the panel's 2017 decision, Fletcher found the warning merely alerts consumers to safety disclosures that the Federal Communications Commission already requires in cellphone user manuals.

Berkeley's required disclosure states in part: “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 [radio frequency] radiation.”

The disclosure instructs consumers to refer to the user manual for more information. The law also allows retailers to add their own messages to the disclosure.

The Cellular Telephone Industries Association (CTIA), an industry trade group that challenged the Berkeley law, argued there is no proof that cellphones are dangerous. The FCC sets its exposure limits at 50 times below the level at which tissue heating in laboratory animals was detected as a result of radio-frequency radiation exposure.

Despite that evidence, Fletcher and U.S. Circuit Judge Morgan Christen found the FCC still saw fit to adopt "specific absorption rate" limits with a large margin of safety.

As she did in 2017, U.S. Circuit Judge Michelle Friedland strongly disagreed with her colleagues, arguing the majority read each sentence of the disclosure in isolation, an approach that "misses the forest for the trees."

Taken as a whole, Friedland said the message of the disclosure is clear: "carrying a phone 'in a pants or shirt pocket or tucked into a bra' is not safe."

That message is unsupported by evidence, Friedland argued, adding that allowing misleading product warnings to proliferate will make the public less likely to pay attention to warnings when the danger is real.

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

Friedland and Christen were appointed by Barack Obama. Fletcher was appointed by Bill Clinton.

CTIA said in an emailed statement that it is not happy with the Ninth Circuit's decision.

“Radiofrequency energy from wireless devices and networks, including 5G, has not been shown to cause health problems, according to the consensus of the international scientific community," CTIA said. "We are disappointed that the city of Berkeley continues to mislead the public.”

Berkeley City Attorney Farimah Faiz Brown said the city is pleased with the appeals court’s ruling.

“The city has always firmly believed that the ordinance is constitutional and serves the public interest,” Brown said by email.

Follow @NicholasIovino

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