No Rehearing in Fight Over Berkeley Cellphone Warning

SAN FRANCISCO (CN) – The Ninth Circuit on Wednesday refused to rehear an appeal over a Berkeley, California, law that requires retailers warn consumers about radiation from cellphones, despite one circuit judge’s scathing dissent.

A majority of Ninth Circuit judges voted to deny a petition for an en banc rehearing that could have overturned a panel’s 2-1 decision in April to uphold Berkeley’s cellphone warning law as constitutional.

Writing for the majority in an opinion published Wednesday, Circuit Judges William Fletcher and Morgan Christen said upholding the panel’s prior decision aligns the Ninth Circuit with four sister circuits that have held governments may compel “purely factual” commercial speech, even in the absence of consumer deception, to serve a compelling government interest.

“Our colleague would have us create a circuit split with the D.C., First, Second and Sixth Circuits,” Fletcher and Christen wrote. “We decline to do soon two grounds. First, circuit splits are generally to be avoided. Second, and more important, we believe that our four sister circuits got it right.”

But Circuit Judge Kim McLane Wardlaw disagreed, arguing that because the Federal Communications Commission already requires radiation disclosures in new cellphone user manuals, Berkeley’s “misleading” disclosure is “completely unnecessary.”

The dissenting judge argued the panel’s majority opinion “applies minimal constitutional scrutiny to Berkeley’s potentially misleading radiation disclosure, merely because it is not technically false.”

Furthermore, Wardlaw said the Ninth Circuit missed an opportunity to clarify what standard courts should apply when evaluating laws that make businesses disclose government-crafted messages to consumers.

In September, a Ninth Circuit panel struck down a San Francisco law that required black-box warning labels on outdoor soda ads. The labels warned consumers that “drinking beverages with added sugar(s) contributes to obesity, diabetes, and tooth decay.” In striking down the ordinance, the panel relied on the “substantial government interest” standard established in the 1980 Supreme Court ruling, Central Hudson Gas & Electric Corp. v. Public Service Commission of New York.

However, in upholding Berkeley’s cellphone warning law, the panel relied on a different standard established in the 1985 Supreme Court ruling, Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio. That ruling “permits compelled commercial speech when it conveys purely factual and uncontroversial information,” the panel found.

Wardlaw questioned if the panel’s “misplaced analysis” of Zauderer might encourage local governments to “pass ordinances compelling disclosures by their citizens on any issue the City Council votes to promote, without any regard to Central Hudson?”

“If the multitudinous governing bodies in our circuit desire to compel speech from their citizens, they should show a substantial state interest and use narrowly tailored means to achieve it,” Wardlaw argued in her dissent.

The Cellular Telephone Industry Association (CTIA), a wireless industry trade group, first challenged Berkeley’s ordinance in U.S. District Court in June 2015. The group claimed the law violated 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, Chen lifted the ban in January 2016. The association appealed, and a three-judge panel upheld Chen’s ruling in a 2-1 decision in April.

The required 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.”

Neither the Cellular Telephone Industry Association nor its attorney Theodore Olson, of the Washington firm Gibson, Dunn & Crutcher, responded to requests for comment sent Wednesday afternoon.

In an emailed statement, Berkeley City Attorney Farimah Brown said, “The city carefully crafted the ordinance to further a substantial government interest – the Ninth Circuit affirmed this in April and today’s decision to not revisit the issue is correct.  We are very pleased with the result.”

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