Court Upholds Landmark Berkeley Cell Phone Radiation Right To Know Ordinance

A landmark 9th U.S. Circuit Court panel has upheld the City of Berkeley’s cell phone right to know ordinance.  That ordinance requires retailers to inform consumers that cell phones emit radiation that can exceed federal cell phone radiation limits when close to the body.  In upholding this decision, the panel concluded that the public health issues at hand were “substantial” and that the “text of the Berkeley notice was literally true,” and “uncontroversial.”

Further, the panel determined that the Berkeley ordinance did not constitute preemption.

“Far from conflicting with federal law and policy, the Berkeley ordinance complemented and enforced it.”

The panel held that Berkeley’s required disclosure simply alerted consumers to the safety disclosures that the Federal Communications Commission required, and directed consumers to federally compelled instructions in their user manuals providing specific information about how to avoid excessive exposure. 

The industry is expected to appeal for a full court en banc review, but this reviewing “panel concluded that CTIA had little likelihood of success based on conflict preemption.”

In response to this court ruling CTIA-v-Berkeley-9th-Circuit-opinion-7-2-2019 Devra Davis, PhD, MPH, President of Environmental Health Trust (EHT)  issued the following statement:

Congratulations to the hard-working indomitable Town Council and Citizens of Berkeley, California for upholding The Right to Know.  More than a decade in the making this decision assures the right to know that cell phones emit radiation and that when the phone is touching the body levels can be exceeded.

Democracy rests on an informed public that freely consents to be governed.  Reliable information is key to the functioning of our system. The right to know is essential to all citizens. And the duty to warn about potential hazards is an obligation of any company. Wherever the right to know and the duty to warn are not followed democracy itself is imperiled. 

Thanks to the Berkeley ordinance billions more will learn that cell phone are two-way microwave radios that should be used with precaution. New scientific studies and investigations from the Canadian Broadcasting Corporation confirm that cellphones can exceed the US FCC limits up toeleven times when held next to the body.

We at the Environmental Health Trust want to extend a great big thank you to Professor Lawrence Lessig of Harvard Law. And to all the many individuals who have dedicated their time to this important work including Joel Moskowitz, Ellie Marks, Llyod Morgan, and many more.” 

The Berkeley Cell Phone Right To Know Ordinance requires retailers post a notice with the following text. 

“The City of Berkeley requires that you be provided the following notice: 

“To assure safety, the Federal Government requires that cell phones meet radiofrequency (RF) exposure guidelines. 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 radiation. Refer to the instructions in your phone or user manual for information about how to use your phone safely.”

Dr. Davis, Visiting Professor of Medicine, The Hebrew University, and the author of more than 220 scientific publications, is also the author of Disconnect–the truth about cellphone radiation.  Prof. Davis testified on this issue before the Berkeley City Council in 2011 and 2015  alongside Joel Moskowitz, PhD, the Director of the Center for Family and Community Health at the University of California, Berkeley and Lawrence Lessig of Harvard Law who has represented Berkeley pro bono. In addition, Davis also testified in the 2009 Congressional Hearings on cell phone radiation regarding the fine print warnings on cell phone radiation buried in cell phones, urging public access to that information. 

Excerpts from The CTIA-v-Berkeley-9th-Circuit-opinion-7-2-2019

“The panel affirmed the district court’s denial of CTIA’s request for a preliminary injunction that sought to stay enforcement of a City of Berkeley ordinance requiring cell phone retailers to inform prospective cell phone purchasers that carrying a cell phone in certain ways may cause them to exceed Federal Communications Commission guidelines for exposure to radio-frequency radiation.”

“CTIA argues that Berkeley’s compelled disclosure is not “purely factual” within the meaning of Zauderer. We disagree. For the convenience of the reader, we again provide the full text of the compelled disclosure: The City of Berkeley requires that you be provided the following notice: To assure safety, the Federal Government requires that cell phones meet radio-frequency (RF) exposure guidelines. 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 radiation. Refer to the instructions in your phone or user manual for information about how to use your phone safely.

The text of the compelled disclosure is literally true.”

“Based on the foregoing, we conclude that CTIA has little likelihood of success on its First Amendment claim that the disclosure compelled by the Berkeley ordinance is unconstitutional. “

“Given the FCC’s requirement that cell phone manufacturers must inform consumers of “minimum test separation distance requirements,” and must “clearly disclose[ ]” accessory operating configurations “through conspicuous instructions in the user guide and user manual, to ensure unsupported operations are avoided,” we see little likelihood of success based on conflict preemption. Berkeley’s compelled disclosure does no more than alert consumers to the safety disclosures that the FCC requires, and direct consumers to federally compelled instructions in their user manuals providing specific information about how to avoid excessive exposure. Far from conflicting with federal law and policy, the Berkeley ordinance complements and reinforces it.”

Read the decision: The CTIA-v-Berkeley-9th-Circuit-opinion-7-2-2019

About Environmental Health Trust

Environmental Health Trust (EHT) is a virtual scientific think tank that educates individuals, health professionals and communities about controllable environmental health risks and policy changes needed to reduce those risks. The foundation’s website is the go-to place for clear, science-based information to prevent disease. Please visit https://www.ehtrust.org. Find EHT on Facebook