SAN FRANCISCO (CN) – In a 2-1 decision, a Ninth Circuit panel on Friday refused to overturn a ruling upholding a Berkeley, California, law that forces retailers to warn consumers about the potential health risks of cellphones.
Writing for the majority, Circuit Judge William Fletcher found that because Berkeley’s required cellphone warning is “purely factual” and serves a legitimate government purpose – protecting public safety – the ordinance does not violate the First Amendment.
“Berkeley’s compelled disclosure does no more than to alert consumers to the safety disclosures that the FCC requires, and to direct consumers to federally compelled instructions in their user manuals providing specific information about how to avoid excessive exposure,” Fletcher wrote. “Far from conflicting with federal law and policy, the Berkeley ordinance complements and reinforces it.”
Disagreeing with her colleagues, Circuit Judge Michelle Friedland wrote the disclosure “taken as a whole” carries a misleading message that “carrying a cellphone in one’s pocket is unsafe.”
“It is clear that the First Amendment prevents the government from requiring businesses to make false or misleading statements about their own products,” Friedland wrote in her dissent.
The contested 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.”
Berkeley’s required warning then directs consumers to refer to their cellphone instruction manuals for more details on safety guidelines crafted by the Federal Communications Commission.
The Cellular Telephone Industries Association (CTIA), a wireless industry trade group, challenged Berkeley’s ordinance in June 2015. The group claimed the law violates the First Amendment by forcing retailers to spread a misleading, government-crafted message.
U.S. District Judge Edward Chen put the Berkeley law on hold in September 2015, finding one line about a greater risk of exposure to cellphone radiation for children was baseless and unscientific.
After Berkeley removed that line from the message, Chen lifted the ban in January 2016. The association quickly appealed, urging a three-judge panel to reverse the judge’s ruling during a hearing in September 2016.
The trade group argued the use of the term “radiation” in Berkeley’s message was inflammatory, “fraught with negative associations” and would “stoke consumer anxiety.” Although the ordinance allows retailers to present consumers with counter-information about the lack of solid research that cellphones pose safety risks, the group argued the law creates significant “pressure to respond” to the government’s “misleading” message.
Two of the panel judges – Fletcher and Circuit Judge Morgan Christen – rejected the wireless group’s arguments, finding it failed to present any proof that Berkeley’s ordinance would result in reduced cellphone sales or that retailers felt pressure to respond to the warning.
“We have concluded that CTIA’s First Amendment claim is unlikely to succeed, and the record provides no evidence to support a finding of economic or reputational harm to cellphone retailers,” Fletcher wrote in the 37-page opinion.
Friedland diverged from that finding, arguing that her colleagues parsed sentences in the warning individually instead of reading it as a whole – and as a result “miss[ed] the forest for the trees.”
“The message of the disclosure as a whole is clear: carrying a phone ‘in a pants or shirt pocket or tucked into a bra’ is not safe,” Friedland wrote. “Yet that implication is a problem for Berkeley because it has not offered any evidence that carrying a cellphone in a pocket is in fact unsafe.”
Friedland cited research studies that show allowing “false, misleading, or unsubstantiated” product warnings to proliferate can cause consumers to pay less attention to warnings in general. She compared the tendency to permit overzealous public warnings to the old adage of “crying wolf.”
“If Berkeley wants consumers to listen to its warnings, it should stay quiet until it is prepared to present evidence of a wolf,” Friedland wrote.
The Berkley City Attorney’s Office, CTIA attorney Theodore Olson and CTIA did not immediately respond to requests for comment Friday afternoon.