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A divided federal appeals court has upheld Berkeley's law requiring cell phone retailers to display warnings about radio frequency radiation in the devices.
In CTIA v. City of Berkeley, the U.S. Ninth Circuit Court of Appeals gave a win to the city, which passed the law to tell people about the danger of putting cell phones in their pant pockets or bras. But it is a loss for wireless retailers -- and a puzzle for free speech advocates -- because the law compels a disclosure that they claim is not true.
"Berkeley's compelled disclosure does no more than to alert consumers to the safety disclosures that the FCC requires, and to direct consumers to federally compelled instructions in their user manuals providing specific information about how to avoid excessive exposure," Judge William Fletcher wrote. "Far from conflicting with federal law and policy, the Berkeley ordinance complements and reinforces it."
The judges did not say cell phones are inherently dangerous, only that the city's warning regulation was valid. But Judge Michelle Friedland said in dissent that businesses should not be compelled to warn against a danger that has not been proven.
"It is clear that the First Amendment prevents the government from requiring businesses to make false or misleading statements about their own products," Friedland said.
The Cellular Telephone Industries Association sued the city in 2015, claiming the law unconstitutionally forced retailers to spread a misleading message about cell phones. Judge Edward Chen enjoined the ordinance, finding "baseless" one warning that cell phones posed a greater risk of radiation exposure to children.
The city then amended the ordinance, and the judge lifted his order. The association appealed to the Ninth Circuit, which said the warning law "did no more than alert customers."
Ruthann Robson, a professor at City University of New York School of Law, said the Ninth Circuit tackled a First Amendment issue that has also been a problem in other courts.
"The panel essentially divides on the limit to government mandated disclosures to consumers, an issue that vexed the DC Circuit," she wrote for the Constitutional Law Prof Blog.
"The Ninth Circuit's majority opinion is careful and well-reasoned, but as the divided panel evinces, there are fundamental disputes about warning labels," she said.