The Berkeley Cell Phone “Right to Know” Ordinance

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Right to know ordinance Berkely

Right to know ordinance, City of Berkeley

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 city ordinance requires sellers to inform customers that keeping a device in a pocket or bra could lead to radiation exposure that exceeds federal guidelines. For years, cell-phone manufacturers have vigorously resisted state and local government attempts to require warning signs about radiation exposure even though their own user manuals advise caution about carrying or holding the phone close to your body while it’s transmitting. These warnings are buried deep in the tiny print. For example:

BlackBerry
“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 at EHT’s ShowTheFinePrint.org site

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

On Children
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.

Please read about the history of the ordinance, see court documents and news stories after this video of the 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.

          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

RESOURCES

DOCUMENTS

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

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

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