Written By: Ryan McCaughey, PhD

The Supreme Court has sent the CTIA v. Berkeley case ack to the Ninth Circuit Court of Appeals for reconsideration. The Berkeley "Right to Know" Ordinance requires that cellphone retailers display the following notification:

“To assure safety, the Federal Government requires that cellphones 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.”

The cell phone industry, represented by the CTIA, contends that the City of Berkeley is violating retailers’ freedom of speech by requiring them to post a misleading and “inflammatory” message. Instead of hearing the case, the Supreme Court sent the case back to the appeals court for further consideration because of the similarities to the NIFLA v. Becerra case, in which the court recently ruled that the state of California violated the First Amendment rights of pregnancy crisis centers by requiring them to inform pregnant women of all available options of medical reproductive care. 

However, the City of Berkeley are hopeful the ordinance will be upheld because in their ruling in NIFLA v. Becerra the Court stated that they "do not question the legality of health and safety warnings long considered permissible, or purely factual and uncontroversial disclosures about commercial products." The City argue that the notice is purely factual and does not make any claims about risks from cell phone use. And since the ordinance has been in effect for more than two years without creating any controversy among consumers or disruption to cell phone retail businesses in the city, it is uncontroversial.

In April 2017 the Ninth Circuit Court of Appeals concluded that this statement “did no more than alert consumers" to disclosures already in their user manuals. 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.”