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Berkeley California’s Cell Phone “Right to Know” Ordinance

This Ordinance was proposed in 2010, unanimously passed in 2015 and immediately slapped with a lawsuit by the Wireless Industry (The CTIA).

Berkeley was the first city in the nation to implement an ordinance that requires cell phone retailers to provide those who purchase a new phone an informational fact sheet on cell phone radiation. In fact, San Francisco had also passed a right to know ordinance in 2010 but the City was unable to implement it after a years long legal battle with the telecommunications industry. (More about San Francisco Ordinance HERE.) 

Wireless Industry Lawsuit Halted Implementation  

The CTIA Wireless Industry filed a lawsuit. The CTIA wireless industry took the case all the way to the Supreme Court, claiming the Ordinance violates their free speech rights by forcing them to inform cell phone buyers of this information. For years the ordinance has withstood the industry challenges as the Supreme Court de facto upheld the ordinance by rejecting the free-speech challenge brought by the CTIA, the telecom industry trade group. Previously, the 9th U.S. Circuit Court en banc upheld the Berkeley ordinance concluding that the public health issues at hand were “substantial” and that the “text of the Berkeley notice was literally correct.”

However in September 2020, a federal judge ruled in favor of the wireless industry to halt the city of Berkeley’s cell phone right to know law requiring retailers to warn customers about cellphone radiation. For five years the CTIA- the wireless industry’s powerful lobby group has argued that Berkeley law violates their First Amendment rights because it compels them to tell consumers to never carry or use a cell phone directly against the body or risk  exposure to RF radiation that may exceed the federal safety guidelines. Instead of making this information readily available to consumers as current FCC regulations require, phone manufacturers deceptively hide this consumer safety warning in legal fine print deep within menus inside the phone

The decision by Judge Chen, terms the Berkeley law “overwarning” noting that the FCC must balance competing objectives of ensuring public health and safety and promoting the development and growth of the telecommunications network and related services.

The Berkeley Ordinance states: 

“The City of Berkeley requires that you be provided the following notice: To assure safety, the Federal Government requires that cell phones meet radio frequency (RF) exposure guidelines. If you carry or use your phone in 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.”

 

Berkeley Ordinance Key Documents

FairWarning.org “Wireless Industry Using First Amendment as a Cudgel in Its Battle Against Safety Warnings.”

No. 17-976: CTIA – The Wireless Association v. City of Berkeley, California, et al.

NRDC Amicus Brief on Berkeley Ordinance 

Video of Court Deliberations 

April 2020 Industry Apeal to the Supreme Court that “The Ordinance Violates The First Amendment By Compelling Misleading, Controversial Speech” 

 

 

Blog Roll on News Regarding the Berkeley Ordinance 

Despite the repeated wins in court, the wireless industry continues to fight against the ordinance claimig it violates the free speech of the companies.

April  2020

CTIA Wireless industry filed another Appeal with the Supreme Court, CTIA April Appeal

December 2019

Supreme Court  Upholds Landmark Berkeley Cell Phone Radiation Right To Know Ordinance and Rejects Industries Appeal

The U.S. Supreme Court rejected a free-speech challenge brought by the telecommunications industry against Berkeley, California’s Cell Phone Right to Know Ordinance.

June 2018

In June 2018 the Supreme Court sent the case back to the California appeals court for review after the Supreme Court’s new ruling on a case concerning California crisis pregnancy centers- NIFLA v. Becerra. In this ruling, the Supreme Court ruled in favor of the crisis pregnancy centers who did not want to be required by a state law (passed in 2015) to inform women that the state offers reproductive care services- including abortions. 

However, the Berkeley Cell phone Right To Know Ordinance differs from the NIFLA v. Becerra case in that the ordinance is factual and not controversial as in the case of NIFLA v. Becerra. Dr. Moskowitz of UC Berkeley who has been closely following the case, stated after the Supreme Court decision, “The Berkeley cell phone “right to know” ordinance requires cell phone retailers to provide consumers with “purely factual and uncontroversial disclosures about commercial products.” Hence, the ordinance will likely withstand legal challenges from the CTIA and its corporate allies.”

The  French government tests are clear documentation that consumers must keep a distance from their phones or they can exceed FCC radiation limits. These instructions are written in the manual of the phone by the manufacturers themselves. 

July 11, 2018: Lynne Peeples published an article on the Berkeley Cell Phone Ordinance in FairWarning.org “Wireless Industry Using First Amendment as a Cudgel in Its Battle Against Safety Warnings.” A shorter version was picked up in McClatchy Washington DC’s Bureau as “Should cell phone providers warn customers of health risks? Berkeley says yes.” This article features Dr. Devra Davis, Dr. Moskowitz, Microwave News and Harvard lawyer Lawrence Lessig, who is representing Berkeley pro bono. 

Watch deliberations from the California Appeals case and from the Berkeley City Council on the Berkeley Cell Phone Right To Know Ordinance in the videos below. Watch more on EHT’s Youtube playlist on the Berkeley Ordinance. 


In 2016 France released documentation of hundreds of cell phone radiation tests showing that cell phones used in body contact positions violate regulator limits for cell phone radiation. In other words, scientific documentation exists that proves that when phones are touching your body, you can be exposed to radiation that far surpasses allowable limits. This is being called #phonegate. Click here to see  a PDF of French ANFR  Cell Phone Make and model with radiation test measurements. As a example of the hundreds of full cell phone test reports online by the French government, please see these examples: the Polaroid PRO 881A, the Motorola Motoluxe, the Apple iPhone 5, and the Echo Note. Please see the French test agency ANFR spreadsheet for more test reports.  Read an overview of the Phonegate story here.

Read the fine print warnings in cellphones, virtual assistants and computers at this link. 

RECENT NEWS

June 28, 2018:  The U.S. Supreme Court issued a ruling in CTIA  v. Berkeley after the CTIA petitioned the Supreme Court to overturn the ruling made by the Ninth Circuit Court of Appeals. Instead of hearing the case, the Supreme Court sent the case back to the appeals court for further consideration in light of the new ruling in NIFLA v. Becerra where in the Supreme Court overturned a California law that required “pregnancy crisis centers” to provide information to patients about the availability of abortion services from the state and other information the centers did not want to state.  

Many experts believe that that this Supreme Court decision will support the Berkeley ordinance because the NIFLA v. Becerra states that “… we do not question the legality of health and safety warnings long considered permissible, or purely factual and uncontroversial disclosures about commercial products.” (National Institute of Family and Life Advocates v. Becerra, Opinion of the Court, pp. 16-17)

According to Dr. Joel Moskowitz, “The Berkeley cell phone “right to know” ordinance requires cell phone retailers to provide consumers with “purely factual and uncontroversial disclosures about commercial products.”  “Hence, the ordinance will likely withstand legal challenges from the CTIA and its corporate allies.”

See No. 17-976: CTIA – The Wireless Association v. City of Berkeley, California, et al.

from the United States Court of Appeals for the Ninth Circuit

For all proceedings and filings please see the SCOTUSblog

June 2018:  The CTIA and the City of Berkeley filed a joint brief to place a hold on their case until the Supreme Court takes action.

April 2018: Harvard Professor Lawrence Lessig files a response to the Supreme Court . Read the full document submitted here.

  • “To support its argument, Petitioner has asserted –falsely – that the FCC has said that cell phones are “safe no matter how they are used.”

January 9, 2018: The CTIA The Wireless Association filed a petition  the United States Supreme Court to hear the CTIA case against the City of Berkeley’s cell phone “right to know” ordinance.  The Competitive Enterprise Institute, along with Cause of Action, joined the Cato Institute’s amicus brief in asking the Supreme Court to review the Ninth Circuit decision in this case, CTIA v. Berkeley. Read a January 31, 2018 article by the the Competitive Enterprise Institute here. 

October 11, 2017: The 9th U.S. Circuit Court of Appeals denied an en banc hearing to the Wireless Industry’s challenge to the Berkeley cellphone right to know act. The CTIA has until January 9, 2018 to petition the Supreme Court for a hearing. The court’s ruling can be downloaded at this link. Scroll down for history, more news articles, videos and resources.

         Appeals Court Won’t Reconsider Challenge To Berkeley Cellphone Warnings Law, CBS SF Bay Area, October 11, 2017

          Ninth Circuit Denies Review in Berkeley Cell Phone Warning Case, Ben Hancock, The Recorder, October 11, 2017
          Appeals Court Rebuffs ANA And Wireless Carriers Over Cell Phone Radiation Warnings, Wendy Davis, Media Post,

 

Berkeley Cell Phone Right To Know : Examples of the fine print FCC instructions buried deep in cell phone manuals.

Signs That Retailers Must Post For Consumers in Berkeley

The BlackBerry FCC Instructions: An example of manufacturer instructions on cell phones. 
“Use hands-free operation if it is available and keep the BlackBerry device at least 0.59 inches (15 mm) from your body (including the abdomen of pregnant women and the lower abdomen of teenagers) when the BlackBerry device is turned on and connected to a wireless network.”

Read all of the fine print warnings for various cell phones and wireless devices at EHT’s Fine Print Webpage.

Children’s Language Removed
Initially the ordinance stated “This potential risk is greater for children,” but that phrase was struck after the legal challenges. In September 2015, the Federal Court required the City to strike the following 7 words from the 82-word safety warning: “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. The City will vote on October 6th on that one sentence modification.

In May 2015, the City of Berkeley unanimously passed an ordinance requiring cell phone retailers to provide the following safety notice to their customers.

“The City of Berkeley requires that you be provided the following notice:

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.”

 

The Berkeley ordinance came about after years of advocacy and is a historic win for consumers Right To Know.

Please read below about the history of the ordinance, see court documents, court decisions  and news stories.

Below is  video of the court hearings after the CTIA filed a lawsuit against the City.

TIMELINE BACKGROUND

Ordinance Proposed

2010: by Max Anderson, City Council Member, following hearings with Prof. Stanton Glantz UCSF and Joel Moskowitz PhD, UC Berkeley, where EHT discussed Disconnect–the truth about Cell Phone Radiation

Ordinance Passed Unanimously

May 12, 2015: Berkeley Adopts the Cell Phone “Right to Know” Ordinance on Unanimous Vote of 9-0.

CTIA Files Lawsuit
Berkeley Cell Phone Right To Know Oral Arguments 9/2016 : Theodore Olson and Lawrence Lessig

June 8, 2015: The CTIA—The Wireless Association filed a lawsuit arguing that such warnings violate the manufacturers’ First Amendment rights by forcing them to state something they do not believe.
July 6, 2015: The City of Berkeley filed its response to the CTIA’s challenge.
July 13, 2015: the Natural Resources Defense Council (NRDC) petitioned the Court for the right to file a “friend of the court” brief opposing the CTIA, arguing that “Mandatory disclosure of environmental and health risks is crucial to protecting the public’s safety and individuals’ autonomy.”
July 20, 2015: The CTIA filed for a preliminary injunction that would block implementation of the ordinance.
August 20, 2015: the U.S. District Court in San Francisco held a hearing on the CTIA’s motion. The CTIA was represented by former U.S. Solicitor General Theodore Olson, who has also represented the tobacco industry on related issues, and the City of Berkeley was represented by Harvard Law Professor Lawrence Lessig pro bono.

September 21, 2015: Federal District Court Judge Edward Chen denied the CTIA’s request for a preliminary injunction and upheld the City of Berkeley’s ordinance. However, the sentence on children was deleted from the safety notification.
Read this Court Ruling here.

January 27, 2015: Judge Chen lifted the ban on the Berkeley cell phone ordinance. The city is now allowed to enforce the amended cell phone law. In his ruling, the judge rejected the CTIA’s argument that the city’s mandated disclosure is controversial and therefore bound by a stricter constitutional analysis.  According to the ruling, “CTIA’s beef should be with the FCC … If CTIA believes that the safety margin is too generous because there is no real safety concern at that level, it should take that matter up with the FCC administratively.”

See Courthouse News Service for a summary of the January 21 hearing and the subsequent ruling by Judge Chen.

September 13, 2016: the Ninth Circuit Court of Appeals held a hearing to consider whether to overturn the district court’s decision that denied the CTIA’s request for a preliminary injunction to block implementation of Berkeley’s cellphone ordinance until the case was decided. Watch the proceedings here.

April 2017: The US Circuit Court of Appeals for the Ninth Circuit issued a landmark decision April 21st upholding the City of Berkeley’s cell phone “right to know” ordinance.

October 2017: The 9th U.S. Circuit Court of Appeals, a federal appeals court in San Francisco declined to grant a rare rehearing of the group’s challenge to a Berkeley cellphone warning law.

“The decision of the district court was correct — twice. The decision of the court of appeals was correct — now twice,” Harvard Law professor Lawrence Lessig, who argued for the city in the case, said in an email to The Recorder. “We are hopeful that this will bring an end to this case, and the City of Berkeley will again be free to govern its citizens as its citizens demand.”

The Natural Resources Defense Council submitted a brief to support the City of Berkeley. The Association of National Advertisers, the American Beverage Association, and the Chamber of Commerce submitted briefs in support of the CTIA.

The court’s ruling can be downloaded at this link.

NRDC Amicus Brief on Berkeley Ordinance 

         Appeals Court Won’t Reconsider Challenge To Berkeley Cellphone Warnings Law, CBS SF Bay Area, October 11, 2017

          Ninth Circuit Denies Review in Berkeley Cell Phone Warning Case, Ben Hancock, The Recorder, October 11, 2017
          Appeals Court Rebuffs ANA And Wireless Carriers Over Cell Phone Radiation Warnings, Wendy Davis, Media Post, October 11, 2016

October 18, 2017

The CTIA submitted a statement to the federal district court regarding future management of the case indicating that it may petition the Supreme Court for a hearing even though the appeals court denied an en banc hearing.  According to the statement, both parties to the case have agreed that discovery and a trial is unnecessary, and neither party is willing to settle the case. The CTIA has until January 9, 2018 to petition the Supreme Court for a hearing.

A thank you to Dr. Joel Moskowitz at University of California Berkeley for his resources and updates on the Berkeley Ordinance which EHT utilizes on this page.

NRDC Amicus Brief on Berkeley Ordinance 

April 2018:  Harvard Professor Lawrence Lessig files a response to the Supreme Court .

RESOURCES

DOCUMENTS

Below is a video of Ellie Marks of the California Brain Tumor Association and Josh Hart of StopSmartMeters who have tirelessly worked alongside many others on this Ordinance.

HISTORY

The Ordinance has been years in the making and scientists and citizens have been advocating for years on the issue of cell phone radiation. Please see below some documents from the City Council over the years.

For additional coverage of this ordinance please go to Dr. Moskowitz’s Webpage on the Berkeley cell phone ordinance

According to the 9/21/2015 Federal District Court Ruling the purpose behind the Berkeley Ordinance is as follows:

A. Requirements for the testing of cell phones were established by the federal government [i.e., the Federal Communications Commission (FCC)] in 1996.

B. These requirements established “Specific Absorption Rates” (SAR).

C. The protocols for testing the SAR for cell phones carried on a person’s body assumed that they would be carried a small distance away from the body, e.g., in a holster or belt clip, which was the common practice at that time. Testing of cell phones under these protocols has generally been conducted based on an assumed separation of 10-15 millimeters.

D. To protect the safety of their consumers, manufacturers recommend that their cell phones be carried away from the body, or be used in conjunction with hands-free devices.

E. Consumers are not generally aware of these safety recommendations.

F. Currently, it is much more common for cell phones to be carried in pockets or other locations rather than holsters or belt clips, resulting in much smaller separation distances than the safety recommendations specify.

G. Some consumers may change their behavior to better protect themselves and their children if they are aware of these safety recommendations.

H. While the disclosures and warnings that accompany cell phones generally advise consumers not to wear them against their bodies, e.g., not in pockets, waistbands, etc., these disclosures and warnings are often buried in fine print, are not written in easily understood language, or are accessible only by looking for the information inside on-screen menus on the device itself.

I. The purpose of this Chapter is to assure that consumers have the information they need to make their own choices about the extent and nature of their exposure to radiofrequency radiation.

ADDITIONAL LINKS

S.F. woman’s crusade against cell-phone industry
San Fransisco Chronicle, 25th September 2015

Judge suggests he may side with most of Berkeley’s cell phone law
Bob Egelko, SF Gate, Aug 20, 2015 (This article appeared in the San Francisco Chronicle, Aug 21, 2015.)

Cell Phone Radiation Warning Challenged in Court
Jessica Aguirre, NBC Bay Area, Aug 20, 2015

Hearing on Berkeley cellphone law leans in city’s favor
Lance Knobel, Berkeleyside, Aug 21, 2015

Cell phones radiation is making headlines again with Berkeley’s Right to Know ordinance
By Lulu Chang, Digital Trends, August 1, 2015

LEGAL BUT LETHAL: Read Dr. Davis’s article in San Francisco Medicine: “Flying Blind: The Public Health Impacts of Wireless Radiation”

1/28/2016 Berkeleyside: Federal judge upholds Berkeley cellphone warning

Appeals Court Won’t Reconsider Challenge To Berkeley Cellphone Warnings Law, CBS SF Bay Area, October 11, 2017

Ninth Circuit Denies Review in Berkeley Cell Phone Warning Case, Ben Hancock, The Recorder, October 11, 2017
Appeals Court Rebuffs ANA And Wireless Carriers Over Cell Phone Radiation Warnings, Wendy Davis, Media Post, October 11, 2016

 

For links to other media coverage about the ordinance see Dr. Moskowitz’s webpage here.

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