Judge: Phone radiation warnings can go ahead with small change

A federal judge ruled Monday that the city of Berkeley, Calif., could force mobile phone retailers to warn customers about radiation exposure, but he struck a small line about increased harm to children. 

Judge Edward Chen said the city could not go ahead with its recently passed ordinance until the line about increased harm to children was removed. But aside from that, the judge said the ordinance likely does not violate the First Amendment rights of wireless retailers, nor is it preempted by federal law. 

{mosads}CTIA — The Wireless Association, a large trade group for the mobile industry, had brought the lawsuit, hoping to block the ordinance. But after the ruling, the city told local news outlets that it would take up the small change to the warning at its Oct. 6 meeting, allowing the ordinance to take effect. 

“The notice contains accurate and uncontroversial information,” the Northern District of California Judge wrote in his opinion. 

On the preemption question, the judge ruled: “Although CTIA has not demonstrated a likelihood of success or even serious question on the merits in its preemption challenge to the main portion of the notice, it has established a likelihood of success on its claim that the warning about children is preempted.”

The ordinance will force cellphone retailers to provide a radiation warning about mobile phone use to every customer who buys a phone in the city. Warnings of radiation exposure from mobile phones have become a controversial issue. While the city argues it is just informing customers about potential risks, the mobile phone industry believes the warnings give off an inaccurate impression of harm, possibly hurting sales. 

The proposed Berkeley warning, that would have to be handed out to customers, reads: 

“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.”  

For the most part, the judge found that the warning just parrots information that is already provided by the Federal Communications Commission (FCC). But the FCC does not impose different exposure limits for children. 

The judge order to strike the sentence because that portion could “materially deter sales on an assumption about safety risks which the FCC has refused to adopt or endorse.”

The judge issued only a preliminary ruling, but made clear CTIA would likely not prevail on the merits of the case. Nonetheless, the trade group’s lawyer expressed confidence that “ultimately the entire ordinance will be struck down.”

“As the federal government has repeatedly recognized, the overwhelming weight of scientific evidence refutes Berkeley’s ill-informed and misleading mandatory warnings about cellphones,” attorney Ted Olson said. 

The trade group successfully killed a similar 2010 law in San Francisco. But advocates of the Berkeley ordinance say the current proposal does not go as far as that one.

The government says it does not know if there is risk from exposure to radio frequency emitted by mobile phones, and research is ongoing. The FCC notes there is currently no scientific evidence that overexposure can cause cancer, headaches, dizziness or memory loss. If there are risks, the FCC predicts they are small. 

The amount of radio frequency that is absorbed into the head of a person using a mobile phone is measured by the Specific Absorption Rate. The FCC sets that limit at 1.6 watts per kilogram. The Government Accountability Office in 2012 found that those limits might not reflect the latest research and may not address exposure limits to the body, for example, when someone carries their phone in their pocket while using headphones.