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Judge Lets Berkeley Warn About Cellphones

     SAN FRANCISCO (CN) - A federal judge Wednesday lifted his ban on a Berkeley law that forces retailers to warn customers about potential health risks of cellphones.

U.S. District Judge Edward Chen put the law on hold in September , finding that one line in the city's contested safety disclosure was baseless and unscientific.

That line, which Berkeley has removed, warned cellphone users that the risk of exposure to radio frequency radiation is "greater for children."

The CTIA - the Wireless Association, a cellphone industry trade group, sued the city in June 2015, claiming the ordinance violates the First Amendment by forcing private retailers to spread a government-crafted message.

In his Wednesday ruling, Chen rejected the wireless group's argument that the city's mandated disclosure is controversial and therefore bound by a stricter constitutional analysis.

"Under CTIA's position, any science-based warning required by a governmental agency would automatically be subject to heightened scrutiny under the First Amendment," Chen wrote.

During a hearing last Friday, CTIA attorney Joshua Lipshutz called the disclosure misleading, saying it refers to FCC guidelines that were designed with a "wide margin of error."

But even if the FCC guidelines are too stringent, that does not affect Berkeley's right to warn its citizens about potential health risks based on federal safety standards, Chen said.

"Thus, ultimately, CTIA's beef should be with the FCC," Chen wrote. "If CTIA believes that the safety margin is too generous because there is no real safety concern at that level, it should take that matter up with the FCC administratively. It has not done so."

Chen also denied the wireless group's motion to stay his order dissolving the injunction pending appeal.

Because the ordinance allows retailers to present their own information to counter the government's message, Chen found the claim that cellphone sellers would suffer "irreparable harm" unsubstantiated.

This is not the first time the cellphone industry has butted heads with a Bay Area city in Federal Court. In 2011, the CTIA successfully defeated a similar law in San Francisco that required cellphone retailers to warn customers about radio frequency energy emissions.

In a hearing last August, a Berkeley attorney said the city left out references to the potential cancer-causing effect of cellphone radiation to avoid the fate that San Francisco's "Cellphone Right-To-Know" ordinance suffered in 2011 .

Berkeley's warning states: "To assure safety, the Federal Government requires that cell phones meet radio frequency (RF) exposure guidelines. 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. Refer to the instructions in your phone or user manual for information about how to use your phone safely."

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