Berkeley Cellphone Law Called Bunk

SAN FRANCISCO (CN) - A Berkeley city law requiring retailers to warn customers that cellphones could endanger their health is scientifically baseless and unconstitutional compelled speech, a trade association claims in court.

CTIA - The Wireless Association sued Berkeley and its City Manager Christine Daniel on Monday in Federal Court.

The Berkeley City Council unanimously approved the law on May 26, "Requiring Notice Concerning Radio Frequency Exposure on Cell Phones."

Berkeley claims that the federal government recommends that cellphones be carried and held "a small distance away from the body," that safety testing was done "based on an assumed separation of 10-15 millimeters," and that "(c)onsumers are not generally aware of these safety recommendations."

So the city requires cellphone retailers to warn customers of the presumed dangers of exposure to radio frequency (RF) emissions. The required warning includes this language: "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. This potential risk is greater for children."

The CTIA claims that's unscientific and unconstitutional.

The city "may be entitled to its opinions, however unfounded. But the First Amendment prohibits the city from conscripting those who disagree into disseminating those opinions," the complaint states. "Yet the city's new ordinance ... would do precisely that."

It adds: "That compelled speech is not only scientifically baseless and alarmist, but it also contradicts the federal government's determination that cell phones approved for sale in the United States, however worn, are safe for everyone."

It also unlawfully pre-empts FCC regulations, in violation of the Constitution's Supremacy Clause, according to the complaint.

CTIA is a nonprofit trade group for the wireless industry, whose members will be affected by the ordinance.

This isn't the first time the organization has butted heads with a Bay Area city over cellphone ordinances. In October 2011, a federal judge ruled a then-new San Francisco law that required cellphone retailers to warn customers about "radio-frequency energy emissions" violated the First Amendment.

The "Cell Phone Right-to-Know" ordinance required retailers that sold or leased cellphones to place sticker warnings on in-store displays, hang 11-by-17-inch posters, and distribute fact sheets to purchasers and would-be purchasers. These materials cited World Health Organization studies that have classified the energy emitted by cellphones as a "possible carcinogen."

San Francisco justified the ordinance by saying: "It is the policy of the city and county of San Francisco to adhere to the precautionary principle, which provides that the government should not wait for scientific proof of a health or safety risk before taking steps to warn the public of the potential for harm."

The Ninth Circuit upheld the order striking down San Francisco's ordinance in an unpublished opinion in 2011, the CTIA says in the complaint.

It asks the court to declare the law unconstitutional, pre-empted by federal law, and enjoin its enforcement.

The CTIA is represented by Theodore Olson, with Gibson, Dunn & Crutcher.

The Berkeley City Manager's Office said it had no comment on pending litigation.

Subscribe to Closing Arguments

Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.

Email *

Submit