Statement by Dr. Devra Davis on the Landmark California Court Ruling Upholding the Berkeley Cell Phone Ordinance

In a clear victory for the public right to know with a landmark court decision, the US Circuit Court of Appeals for the Ninth Circuit has upheld the City of Berkeley’s ordinance requiring phone sellers make public typically hidden advice about distances used for cell phone testing. In an April 21, 2017 filing, the Court decisively rejected the industry argument that making that advice public deprived them of their First Amendment rights.

Phone sellers 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.

First Amendment scholar and Harvard Professor Lawrence Lessig argued the case for the City of Berkeley, pro bono, pointing out that the City only required that hidden information about tested distances be made publicly accessible.

In its decision, the court noted that specific FCC tests require that phones be placed about an inch off the body and are generally not known by the public, quoting the FCC requirement:

All supported body-worn accessory operating configurations must be clearly disclosed to users, through conspicuous instructions in the user guide and user manual, to ensure unsupported operations are avoided.

The court affirmed Berkeley’s Ordinance, “We agree with the district court that an injunction would injure the public interest in having a free flow of accurate information.”

Dr. Devra Davis, President of Environmental Health Trust, added: “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 phones are tested away from a large adult male body, and some distance from the head. A recent Canadian Broadcasting Corporation independent evaluation showed that phone radiation limits can be 3-4 times over approved levels when phones are tested as they are used– directly next to the head or body.”

Further judicial support for the need to reduce exposure to cellphones comes from a recent landmark court ruling in Italy granting monthly worker compensation to a man who developed a brain tumor that caused him to go deaf after he was required to use his phone regularly for work. Recently the Israeli Health Ministry advised that both students and teachers not be permitted to use microwave radiating phones in schools, noting growing scientific evidence of harms from such exposures.

Dr. Davis noted: “These developments should send a wake up call to schools and employers around the world. Before requiring students and workers to use these devices, institute simple programs of safety. Cell phones should not be held to your head nor stowed in your pocket or bra. Minimize exposure to children as the American Academy of Pediatrics, Belgium, France, and Israel are doing now. Download software and then switch to airplane mode, to keep exposures as low as reasonably achievable. 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.”

Read the April 21, 2017 Court filing