Rejecting a free-speech challenge by a cellphone industry group, the Ninth U.S. Circuit Court of Appeals in San Francisco said in a 2-1 ruling that the warning notice is “literally true,” promotes public health and information, and does not require retailers to post controversial messages that violate their beliefs.
The same court panel had reached the same conclusion in April 2017, upholding the Berkeley ordinance, which took effect in 2016. But the Supreme Court set that ruling aside in June 2018 and told the appeals court to reconsider it in light of the high court’s ruling overturning a California law that required antiabortion clinics to post notices about low-cost reproductive care, including abortions.
In that 5-4 ruling, the Supreme Court said the notices, though factually accurate, violated the constitutional rights of the religiously sponsored “crisis pregnancy centers” by forcing them to follow a “government-drafted script” about a controversial medical procedure that they morally opposed.
Cellphone companies argued that Berkeley was doing the same thing by requiring them to convey a message implying that the phones are unsafe. But the appeals court said Berkeley had simply told retailers to provide the same notice to customers that the Federal Communications Commission has required in the manuals of every cellphone they sell.
“The FCC’s required disclosure is no more and no less than a safety warning, and Berkeley’s required disclosure is a short-hand description” of that warning, Judge William Fletcher said in the majority opinion. Unlike the abortion case, he said, the retailers are not being required to “take sides in a heated political controversy.”
The director of the California Brain Tumor Association, a sponsor of the ordinance, praised the ruling. “People deserve the right to make informed decisions for themselves and their families,” Ellen Marks said.
CTIA-The Wireless Association, the industry group that challenged the ordinance, said in a statement that “the consensus of the international scientific community” has found no health dangers from cellphones. “We are disappointed that the city of Berkeley continues to mislead the public,” the organization said.
The ordinance requires dealers to notify their customers that the federal government sets radiation standards for cellphones, and that exposure “may exceed the federal guidelines” if users carry their phone in a pants or shirt pocket or tucked into a bra while connected to a wireless network.
Retailers must display the warning on a poster or handout flyer, attributed to the city of Berkeley.
Fletcher, joined by Judge Morgen Christen, said the FCC has not classified cellphones as dangerous, but has established radiation limits that can be met by keeping phones a certain distance from the body. The federal agency set its standards with a large margin of safety, Fletcher said, and a city is entitled to pass that information along to consumers, who may be unaware of them.
In dissent, Judge Michelle Friedland said the message Berkeley requires dealers to convey to customers is that “carrying a cellphone in one’s pocket is unsafe,” despite the lack of evidence of any such dangers.
©2019 the San Francisco Chronicle. Distributed by Tribune Content Agency, LLC.
