Wireless Industry Fights SF Notices in 9th Circuit

     (CN) – San Francisco retailers should not have to warn consumers that their cellphones might emit cancer-causing radiation, a telecommunications trade group told the 9th Circuit.
     Under the Cell Phone Right-to-Know Ordinance of 2010, retailers in the city of San Francisco must adopt several measures to inform consumers about the Specific Absorption Rate (SAR) of radio frequency radiation emitted by wireless devices.
     The original ordinance required retailers to display each cellphone’s SAR value on phone packaging and on posters displayed in the store. Retailers additionally had to provide customers with a factsheet that offered tips for reducing exposure.
     Radiation from phones is limited by the Federal Communications Commission. CTIA, a telecom lobbying group, says the current approved level is 50 times less than what is harmful to human health.
     Phone companies say it is misleading to display a phone’s SAR value because the federal government has approved all SAR values at or below the FCC’s maximum level, and 100 percent of phones for sale in the United States meet that standard.
     They claim that federal law pre-empts San Francisco’s law, and that it is a violation of the First Amendment to make businesses to post the regulations.
     In October 2011, U.S. District Judge William Alsup enjoined the labeling and poster requirements, but green-lit a modified factsheet.
     Though San Francisco has a public health interest in preventing cancer, the claimed interest “amounts only to protecting the public from a ‘possible’ carcinogen,” he said.
     Since the factsheets explain that “a debate exists about whether wireless phone use is linked to cancer and other illnesses,” the judge upheld the law requiring their dissemination.
     But the factsheets also contained some “misleading” claims, which would have to be addressed. Alsup nixed the images of cellphones beaming radio frequency radiation into the bodies of their users. He directed the city to note that the World Health Organization has classified cellphone radiation as a “possible” carcinogen, putting it in the same league as coffee and pickled vegetables.
     After San Francisco passed an amended ordinance within two weeks of Alsup’s ruling, the cellphone companies against sought a preliminary injunction. Alsup denied the request, but the law has been stayed temporarily pending appeal.
     “This is not a case about the government’s speech,” CTIA attorney Andrew McBride told a three-judge panel of the 9th Circuit.
     “This is a case where the city has decided to use its police power to make a private party who does not wish to speak, speak,” added McBride, an attorney with Wiley Rein in Washington, D.C.
     Though San Francisco can disseminate information expressing its own opinions about the dangers of cellphone use, it cannot force retailers to do so, he said.
     But the factsheet does not offer objective facts, according to the CTIA.
     The factsheet label is “like calling the communist manifesto a treatise on economics,” McBride said.
     “Let’s not let this thing out the door until I get to litigate it because that’s a bell that can’t be unrung,” he told the court. “Once I have to pass this out … consumers will get the opinion that these phones are dangerous.”
     McBride also said Alsup took on an impermissible legislative role in suggesting factsheet edits.
     But San Francisco Deputy City Attorney Vince Chhabria said the law represents a reaction to sufficient evidence of harmful radiation.
     “There is no rule that says that the government must wait until we know that a product actually kills people,” he said.
     “Just look at asbestos; just look at tobacco. There was a long time where we didn’t have conclusive proof that tobacco kills people, that asbestos kills people, but there was a strong suspicion.”
     The appellate panel asked how San Francisco’s law survives under recent circuit precedent, which the Supreme Court upheld in Brown v. Entertainment Merchants Association.
     Last year, the courts struck down California’s attempt to outlaw the sale or rental of violent video games to minors. Because the “violent video game” label was not a factually assessable standard, the courts called the law an unconstitutional restriction of First Amendment rights.
     But Chhabria said San Francisco had to meet a lower burden of proof to mandate retailer speech here.
     “There doesn’t have to be causation,” Chhabria said. “That’s the difference between the application of strict scrutiny to a ban on the distribution of art … and the application of the reasonable-relationship test to a product-disclosure requirement [in which] there does not need to be such high of a standard.”
     “You have to defer to the District Court in a significant way on whether these materials are misleading,” Chhabria added. “That’s the standard.”
     A barrage of questions from the judges brought both sides well over their 20-minute allotment for oral arguments. Chhabria seemed to take the more rigorous questions.
     “Our Supreme Court, which obviously we listen to, is really quite robust on the First Amendment,” said Judge Consuelo Callahan, who authored the 9th Circuit’s decisonin the video game case.
     “I think that the jurisprudence of the Supreme Court doesn’t really favor that you can compel them to say these things,” she added.
     U.S. District Judge Edward Korman, sitting by designation from the Eastern District of New York, also appeared skeptical.
     Referring to a New York law requiring the display of food calorie counts, he commented, “400 calories in a hamburger is not the same thing as ‘limit cell phone use by children,’ and the ‘possibility of harm’ is not the same thing as the known harm that the more calories you eat, the more likely you are to be obese. These are very different animals.”
     Judge Mary Schroeder is the third member of the panel.
     One day before oral arguments, the U.S. Government Accountability Office called for the FCC to re-evaluate a possible link between cellphone radiation and cancer.

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