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Judge Guts Berkeley’s Cellphone Warning Law

SAN FRANCISCO (CN) - A federal judge has ruled that federal law may preempt parts of a Berkeley city ordinance requiring retailers to warn customers about the dangers of cellphone use.

However, U.S. District Judge Edward Chen disagreed with the wireless trade association CTIA's claim that the ordinance violates retailers' First Amendment rights.

Chen's 35-page order, filed Tuesday, granted CTIA's request for a preliminary injunction of the ordinance "to the extent the court finds a likely successful preemption claim with respect to the sentence in the city notice regarding children's safety."

However, he denied the request "to the extent the court finds that a First Amendment claim and preemption claim are not likely to succeed on the remainder of the city notice language."

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

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

Berkeley claims 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 "consumers are not generally aware of these safety recommendations."

So the city required cellphone retailers to warn customers of the presumed dangers of exposure to radio frequency (RF) emissions. The 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."

According to the order filed Monday, Chen said the line "'This potential risk is greater for children' is likely preempted by federal law."

But he also said "CTIA has not cited any appellate authority addressing the proper standard of First Amendment review where the government requires mandatory disclosure of government speech by a private party in the context of commercial speech."

CTIA is represented by Theodore Olson of Gibson Dunn & Crutcher, who said in a statement: "We are pleased that the court has preliminarily blocked enforcement of the Berkeley ordinance as drafted. As the federal government has repeatedly recognized, the overwhelming weight of scientific evidence refutes Berkeley's ill-informed and misleading mandatory warnings about cell phones. We are confident that ultimately the entire ordinance will be struck down."

The Berkeley City Manager's Office could not immediately be reached for comment.

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