(CN) – A new San Francisco law that requires cellphone retailers to warn customers about “radio-frequency energy emissions” violates the First Amendment, a federal judge ruled.
CTIA-The Wireless Association sued the city and county of San Francisco over its “Cell Phone Right-to-Know” ordinance, which requires retailers that sell or lease 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 cite World Health Organization studies that have classified the energy emitted by cellphones as a “possible carcinogen.”
San Francisco had justified the ordinance by stating, “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.”
While agreeing that public health is a governmental interest and that San Francisco can require disclosures relating to public health, U.S. District Judge William Alsup ruled that the posters and fact sheets are “misleading by omission” because the text implies that the FCC has declared R-F energy emissions dangerous, though no such declaration has occurred. The signs also fail to explain the limited significance of the WHO’s “possible carcinogen” classification.
San Francisco must make textual changes to the fact sheet and to remove a graphic silhouette being “bombarded” by colored circles of energy emissions, Alsup ruled. If the city and county find the changes unacceptable, “the entire program will be enjoined and San Francisco should broadcast its message at its own expense rather than compelling retailers to disseminate misleading statements,” according to the order.
“There is no reasonable cause for requiring retailers to convert their walls to billboards for the municipal message,” Alsup wrote. “San Francisco cannot paste its municipal message over the message of the retailers.”
“San Francisco has long been bathed in RF radiation from … transmitting facilities, from radar, from hand-held television remotes, from portable phones, from WiFi (vigorously promoted by San Francisco itself),” he added. “If this exposure has been so dangerous, one might ask reasonably why hasn’t it manifested itself by now? If there is a link, it must be weak or slow-acting.”
Both parties must submit their proposed versions of the new material by Nov. 4.