After complying with a federal judge’s order on Wednesday, the city of Berkeley, California, will now be allowed to go forward with its cell phone radiation warning law, as it has cut out one controversial line. It is not clear when the new notice will go into effect.
Last year, the city passed a municipal ordinance requiring that a retailer provide, either in the form of a mounted poster or as a printed handout, this message:
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. This potential risk is greater for children. Refer to the instructions in your phone or user manual for information about how to use your phone safely.
Berkeley Municipal Code § 9.96.030(A)
The case, known as CTIA v. City of Berkeley, pitted two giants of the legal world against one another. On the side of the plaintiffs is Ted Olson, a former solicitor general under the George W. Bush administration. Meanwhile, the defendants are armed with former presidential hopeful and rockstar Harvard law professor Lawrence Lessig.
In September 2015, United States District Judge Edward Chen found in favor of Berkeley, saying that the above language could stand, but only if the city struck the line: “This potential risk is greater for children.” He then granted a preliminary injunction until the change was made, stopping the law from taking effect.Two months later, Berkeley gave the court the new city council-approved language with the relevant changes and asked the judge to lift the injunction.
Judge Chen did so in his Wednesday order, and he denied the CTIA’s request to stay the legislation pending an appeal.
As he wrote:
CTIA contends that, even if the two sentences are technically accurate, the juxtaposition of the two gives rise to the implication that carrying or using your phone in a pants or shirt pocket or tucked into a bra when the phone is on and connected to a wireless network is unsafe. But even though the FCC has indicated that such should not be unsafe (at least from a thermal effects perspective), the fact remains that the FCC still decided to set the guidelines at particular levels because of its safety concerns. Thus, ultimately, CTIA’s beef should be with the FCC. If CTIA believes that the safety margin is too generous because there is no real safety concern at that level, it should take that matter up with the FCC administratively. It has not done so. Berkeley’s reference to these unchallenged FCC guidelines does not violate the First Amendment.
As Ars reported previously, it’s important to note that there really isn’t any current science to support the need for the warnings Berkeley is mandating. There’s no well-described mechanism by which non-ionizing radiation can induce long-term biological changes, although it can cause short-term heating of tissues. There are also no clear indications that wireless hardware creates any health risks in the first place, which raises questions of what, exactly, the city’s legislation was supposed to accomplish. At best for cities like Berkeley, large and comprehensive works indicate that any potential risks take decades to be felt, and cell phones simply haven’t been in use long enough for us to know for sure.
Neither the city of Berkeley nor the CTIA responded to Ars’ request for comment.
UPDATE 4:15pm ET: In a statement, the CTIA told Ars that it would appeal.
We believe Judge Chen has created new law in this case that dramatically weakens First Amendment protections and contradicts binding decisions of the 9th Circuit Court of Appeals as well as the Supreme Court. In fact, the Ninth Circuit previously invalidated a very similar cellphone ordinance in San Francisco. That is why we will respectfully be appealing Judge Chen’s ruling to the 9th Circuit. The overwhelming scientific evidence refutes Berkeley’s ill-informed and misleading mandatory warnings about cellphones, according to the FCC and other experts. With these realities on our side, we are confident that we will prevail in our appeal.
Amanda Shanor, one of the attorneys representing Berkeley, told Ars that the city was “pleased” with the ruling.
“We are confident that Berkeley’s regulation will be upheld on appeal,” she e-mailed.
She also noted that “the ordinance will go into effect on March 22nd unless the Court of Appeals issues a stay pending appeal.”