Landmark California Court Ruling Upholds the Berkeley Right To Know Cell Phone Ordinance

Legal Victory For The First U.S. City Where Cell Phone Retailers Must Display Cell Phone Radiation Info

Court upholds California Berkeley Right To Know Cell Phone Ordinance that retailers must inform consumers that cell phones in pocket could exceed government radiation limits.

Press Release (Washington, DC): 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 requiring phone sellers to publicly inform consumers that the federal government sets radiation limits for cell phones and that a person can be exposed to radiation levels higher than these limits by carrying a cell phone in a pocket, bra or close to the body. The City originally issued the ordinance in 2015, and then the cell phone industry trade group, CTIA – The Wireless Association unsuccessfully sued in an effort to block the ordinance, arguing that it violated the company’s’ First Amendment freedom of speech rights. The industry group may appeal and could take the case to the Supreme Court, according to the San Francisco Chronicle.

Harvard Constitutional Law Professor Lawrence Lessig defended the ordinance and was opposed by telecom counsel Theodore Olson, former solicitor general under George W. Bush.

First Amendment scholar Lessig pointed out, “The City of Berkeley simply required that hidden information about tested distances be made publicly accessible. The manufacturers themselves advise consumers to not keep phones next to their skin. Most people are not aware of that, and we were just arguing that the public has a right to know this when they purchase the cell phone.”

Dr. Devra Davis, President of Environmental Health Trust, commented, “This is a great day for the American public and for all those concerned with preventing harm and protecting our children. People have a right to know that the radiation levels of cell phones are tested with a distance between the phone and their bodies, a way that does not reflect how people commonly use their phones. A recent Canadian Broadcasting Corporation independent evaluation showed that phone radiation limits can be three to four times higher than government allowable radiation limits when phones are tested as they are used—directly next to the head or body.”

The Court concluded that barring the Berkeley law “would injure the public interest in having a free flow of accurate information.”

This ruling comes on the heels of another landmark court ruling in Italy granting lifetime compensation to a man who developed a brain tumor that caused him to become deaf in one ear after he used his phone regularly for work for fifteen years. In February 2017, the California Superior Court ordered the California Department of Public Health (CDPH) to release a “ Cell Phone and Health” advisory, which the CDPH had previously written but had not released, that warned of possible health effects from cell phone use.

Davis points out that the Berkeley Ordinance was not about health effects, “but if it had been about health effects, the Court could have been presented with substantial peer reviewed research which indicates not only cancer, but also adverse effects to the brain and reproductive system from cell phone radiation.” Earlier this year, scientists from 10 nations evaluated the latest peer reviewed body of evidence at the Israel Institute for Advanced Studies at Hebrew University and a working group concluded that the epidemiological research had increased and radiofrequency fields should be considered a probable cause of human cancer. The National Institute of Environmental Health Sciences presented the National Toxicology Program study’s research findings on rats exposed to wireless radiation at levels mimicking long-term cell phone exposures which found highly malignant cancers of the brain; increased highly malignant cancer of the heart nerve sheath; and DNA damage in the brain.

Dr. Davis added, “These developments send a wake up call to the public, and especially to institutions and organizations that expose children to wireless technology. Before requiring students and workers to use these devices, simple programs of safety need to be instituted. Exposure of children to radiation from wireless technology, as called for by the American Academy of Pediatrics, and government agencies in Belgium, France, and Israel. Simple steps consumers can take include switching devices off or to airplane mode when not in use, turning routers off at night or going back to ethernet, and keeping cell phones at a distance from your body – not in bras or pockets, for example. Schools should move to wired computer instruction, as pediatricians and public health experts with the Governor’s Maryland State Children’s Health Advisory Council recently urged.”

The Berkeley City Council began a review of cell phone radiation health effects and disclosures over seven years ago. San Francisco, California was the first city in the nation to pass cell phone safety legislation in July 2011 with a “Right to Know” ordinance unanimously passed by the Board of Supervisors and signed by Mayor Lee on August 2, 2011. Full implementation was blocked after the CTIA sued the city. However the City maintains a public information webpage on cell phone radiation which states “manufacturers warn (in the cell phone user manuals) “if a user holds a phone too close to their body, a phone may exceed the radiofrequency energy exposure limitation set by the Federal Communications Commission (“FCC”).”

Environmental Health Trust has compiled the history, videos of council meetings and testimony to the Berkeley City Council that resulted in the Ordinance at the Environmental Health Trust webpage https://ehtrust.org/policy/the-berkeley-cell-phone-right-to-know-ordinance/

Read the April 21, 2017 Case: 16-15141 Court filing

Read Statement by Devra Davis on the April Court Ruling

Phone retailers in Berkeley are required to post this notice:

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.