Written by: Ryan McCaughey, PhD.
In October 2017, the Ninth Circuit Court of Appeals refused to reconsider its decision to uphold a Berkeley ordinance that requires retailers to warn customers about cell phone radiation exposure. The CTIA [a group representing the U.S. wireless communications industry] and Association of National Advertisers (ANA) have until January 9, 2018, to petition the Supreme Court for a hearing.
Berkeley’s ordinance which has been in effect since March 2016 requires cellphone retailers in the city to provide consumers with the following notification:
“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.”
All phones come with a warning to keep your phone away from your body. For example, the Samsung Galaxy S8 manual advises: “Body-worn SAR testing has been carried out at a separation distance of 1.5 cm. To meet RF exposure guidelines during body-worn operation, the device should be positioned at least this distance away from the body.” For context 1.5 cm is approximately the width of your finger. This means that if your phone is in your pocket it can exceed the FCC safety limit for cell phone radiation exposure.
In 2011 the WHO/International Agency for Research on Cancer (IARC) classified radiofrequency electromagnetic fields as possibly carcinogenic to humans (Group 2B), based on an increased risk for glioma, a malignant type of brain cancer, associated with wireless phone use.
The CTIA and ANA first challenged Berkeley’s ordinance in U.S. District Court in June 2015, which resulted in the city being forced to remove a line about children being at greater risk to cell phone radiation. The Federal Court required the City to strike the words “This potential risk is greater for children.” The Judge ruled that although this sentence may be factual, it can be argued that it is controversial because the FCC does not acknowledge that children’s exposure to cell phone radiation is greater than adults. After the new language was approved in 2016 the CTIA took their appeal to the Ninth Circuit. In April 2017, the court upheld the “Right to Know” cell phone warning law. They concluded that the warning "did no more than alert consumers" to disclosures already in their user manuals, and that “the Berkeley ordinance complements and reinforces” federal law.
In October a majority of the twenty-nine Ninth Circuit judges voted to deny a petition from the CTIA/ANA for an en banc rehearing that could have overturned the earlier decision to uphold Berkeley’s cellphone warning law as constitutional. (In law, en banc refers to a session heard before all the judges of a court, as opposed the panel of 3 judges that ruled in April 2017.)
With neither party willing to settle the case, the next legal step could be for the CTIA/ANA to petition the Supreme Court to hear the case.
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