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Berkeley Warns of Cell Phone Radiation -- Ordinance Warning Law Upheld

By William Vogeler, Esq. | Last updated on

Remember when people worried about cell phones causing brain cancer if they put the devices to their ears?

Well, the City of Berkeley thinks it is bad enough that cell phone retailers ought to warn people about putting them in their pant pockets or bras -- literally that's what their signs must say. And since a federal appeals court said the city ordinance is valid, it must be so.

"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," Judge William Fletcher wrote. "Far from conflicting with federal law and policy, the Berkeley ordinance complements and reinforces it."

No Proof, No Vote

The judges did not say cell phones are inherently dangerous, only that the city's warning regulation was valid. Judge Michelle Friedland, in a dissenting vote, had a problem with that. She said businesses should not be compelled to warn against a danger that has not been proven.

"It is clear that the First Amendment prevents the government from requiring businesses to make false or misleading statements about their own products," Friedland said.

The Cellular Telephone Industries Association sued the city in 2015, claiming the law unconstitutionally forced retailers to spread a misleading message about cell phones. Judge Edward Chen enjoined the ordinance, finding "baseless" one warning that cell phones posed a greater risk of radiation exposure to children.

The city then amended the ordinance, and the judge lifted his order. The association appealed to the Ninth Circuit, which said the warning law "did no more than alert customers."

Specific Absorption Rate

Industry observers have watched the case closely, reporting that little to no science supports the need for the Berkeley-type warnings. Other than over-heating issues such as in the Galaxy Note 7, wireless phones are not known to cause any health risks.

The Berkeley law is aimed at radio frequency radiation, which can be measured through the Specific Absorption Rate. It shows how fast energy is absorbed into the human body.

Since 1996, the Federal Communications Commission has mandated that all cell phones in the United States not exceed an SAR limit of 1.6 watts per kilogram. That measurement is typically hidden in a cell phone's menu.

CTIA, in arguing against the warning mandated by the city, said it would scare away customers. The Ninth Circuit majority, however, said it was "largely reassuring" because it tells customers that their phones meet or exceed safety standards.

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