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MARK CRISPIN MILLER

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Good news! Berkeley’s “cell phone right to know” survives SCOTUS challenge by the wireless juggernaut

From Joel Moskowitz, via Katie Hickox:

Berkeley’s “Cell Phone Right to Know” law survives Supreme Court challenge

Electromagnetic Radiation Safety

December 9, 2019

In a major victory for consumer rights and public health, the U.S. Supreme Court today rejected a free speech challenge filed by the CTIA–The Wireless Association against the City of Berkeley’s “cell phone right to know law” which the Berkeley City Council unanimously adopted in 2015.

Thus, the ruling by the Ninth Circuit Court of Appeals that the law is constitutional enables the city to continue to enforce the law which requires cell phone retailers to notify prospective customers about cell phone manufacturers’ safety guidelines to ensure consumer safety. 

In refusing to review the case, the Supreme Court ignored the pleas of six pro-business organizations that submitted amicus briefs in support of the CTIA’s position.

For details about the law and a chronology of the court case see bit.ly/berkeleycellordinance.

Following is today’s news media coverage on the Supreme Court ruling. For links to all media coverage see http://bit.ly/berkeleymedia

Berkeley’s cell-phone health warning survives Supreme Court challengeBob Egelko, San Francisco Chronicle, Dec. 9, 2019 
Photo caption: This July 10, 2019, photo shows an Associated Press reporter holding a phone showing the Facebook Messenger app in San Francisco. (AP Photo/Jeff Chiu)

The U.S. Supreme Court rejected a telecommunications industry challenge Monday to Berkeley’s requirement that cell-phone retailers warn customers about the possible radiation dangers of holding the phones close to their bodies.

The city’s ordinance took effect in 2016. It requires dealers to notify their customers that the Federal Communications Commission sets radiation standards for cell phones, and that exposure “may exceed the federal guidelines” if users carry their phone in a pants or shirt pocket or tucked into a bra while they’re connected to a wireless network.

Retailers must display the warning on a poster or in a handout flyer, attributed to the city of Berkeley.

Cell-phone companies argued that the ordinance violated their free-speech rights by requiring them to deliver a message with which they disagreed. They made that argument earlier in a successful challenge to a San Francisco ordinance, the first of its kind in the nation, which would have required retailers to give buyers a fact sheet saying the World Health Organization considered cell phones’ emissions a “possible carcinogen,” and showing human silhouettes absorbing radiation.

But federal courts have allowed enforcement of Berkeley’s more modest measure, which is tied to Federal Communications Commission standards. After ordering a lower court last year to reconsider the challenge, the Supreme Court denied further review of the industry group’s appeal Monday without explanation and let the ordinance remain in effect. None of the justices issued a dissenting opinion.

“People have a right to know the truth at the point of sale so that they can properly protect themselves and their families,” said Ellen Marks, director of the California Brain Tumor Association, which supported the measure. She said her organization will campaign for similar laws by cities and states nationwide.Cell Phone Warnings

CTIA-The Wireless Association, the industry group that challenged the Berkeley ordinance, said it was disappointed by the court’s action, but noted that the Federal Communications Commission itself declared last week that “no scientific evidence establishes a causal link” between cell-phone use and human illnesses.

After a federal judge and the Ninth U.S. Circuit Court of Appeals in San Francisco refused to block the ordinance, the Supreme Court told the appeals court in June 2018 to reconsider the case in light of the high court’s ruling that month on antiabortion clinics known as “crisis pregnancy centers.”

In striking down a California law that required the clinics to post notices about the availability of low-cost reproductive care, including abortions, a 5-4 majority of the court said the notices violated the owners’ rights by making them follow a “government-drafted script” about a controversial procedure they opposed.

The appeals court reconsidered the cell-phone case and reaffirmed its previous conclusion. Berkeley’s warning is “literally true,” promotes public health and does not require retailers to post messages that violate their beliefs, the court said in a 2-1 decision in July.

“The FCC’s required disclosure is no more and no less than a safety warning” that the city is relaying to cell-phone customers, Judge William Fletcher said in the majority opinion. Dissenting Judge Michelle Friedland said the warning carries a message, unsupported by evidence, that cell phones are unsafe.

In a filing seeking Supreme Court review, CTIA’s lawyers, led by Theodore Olson, a former U.S. solicitor general, said the appeals court ruling invites cities “to burden businesses with an ever-expanding rucksack of compelled disclosure requirements — not to prevent any consumer deception, but to suit their own political, ideological, and normative views on a countless variety of topics.”

The case is CTIA-The Wireless Association vs. Berkeley, 19-439.Bob Egelko is a San Francisco Chronicle staff writer. Email: begelko@sfchronicle.com Twitte: @BobEgelkohttps://www.sfchronicle.com/bayarea/article/Berkeley-s-cell-phone-health-warning-survives-14893869.php
Justices Won’t Review Berkeley Cellphone Radiation Warning

Anne Cullen, Law360, Dec 9, 2019
Law360 (December 9, 2019, 6:05 PM EST) — The U.S. Supreme Court declined Monday to take up a wireless industry group’s challenge to a Berkeley, California, ordinance that requires cellphone retailers to warn consumers about radiation risks.

Despite vacating a Ninth Circuit’s earlier decision upholding the law, the justices opted not to wade into the dispute a second time after the appellate court again backed the California city’s disclosure mandate in July.

As is customary, the high court offered no reasons for turning down the case.

Behind the challenge is the CTIA — The Wireless Association, which contends that the ordinance illegally forces businesses to spout misleading information about their products in violation of the First Amendment.

The 2015 law specifically requires cellphone retailers to tell prospective buyers that carrying a cellphone closer to their bodies — for example, in a waistband or pocket rather than a purse or holster — may cause them to be exposed to radio-frequency radiation exceeding Federal Communications Commission guidelines.

The Ninth Circuit originally upheld the mandate in 2017, but the Supreme Court sent the case back down to the appellate court for a rethink, citing the justices’ holding last year in National Institute of Family and Life Advocates v. Becerra. In the NIFLA case, the justices ruled in a 5-4 decision that a California law requiring so-called crisis pregnancy centers to disclose their statuses as unlicensed and inform patients of other options, like free or low-cost contraception or abortions, violated the First Amendment.

However, a split Ninth Circuit again backed the Berkeley ordinance on remand from the high court, with the majority rejecting CTIA’s claim that the required disclosure was deceptive. The panel found that each line of the warning is factually correct, and the fact that the FCC hasn’t found radio-frequency radiation to be dangerous is beside the point. 

The dissenter, U.S. Circuit Judge Michelle Friedland, wrote that while each line might be literally true, consumers will not read them in isolation the way the majority does. Taken as a whole, Judge Friedland said, the unsubstantiated product warnings will give consumers incorrect ideas about cellphone safety. 

CTIA asked the justices to again roll back the mandate in September, arguing that the warning wasn’t purely factual, as it said radio-frequency radiation from cellphones has not been proven dangerous to consumers. The risks presented from cellphone radio-frequency radiation is so remote, CTIA said, that any potential harm is outweighed by the bigger risk that Berkeley’s disclosure will scare consumers out of buying a product that can benefit them. 

A spokesperson for the organization said in an email Monday that the company is disappointed by the justices’ decision to leave the law intact, and encourages consumers to listen to the U.S. Food and Drug Administration and the scientific community when it comes to radiofrequency exposure. The spokesperson also emphasized that the FCC hasn’t found any evidence to support that health is compromised by exposures at or even above the current RF limits.

“Indeed, no scientific evidence establishes a causal link between wireless device use and cancer or other illnesses,” the spokesperson said.

Representatives for Berkeley did not respond to a request for comment Monday.

CTIA is represented by Theodore B. Olson, Helgi C. Walker, Jacob T. Spencer, Joshua D. Dick, Alexander N. Harris and Samantha A. Daniels of Gibson Dunn & Crutcher LLP.

Berkeley is represented by Farimah Brown and Christopher D. Jensen of Berkeley City Attorney’s Office, Lawrence Lessig of Harvard Law School, and Amanda Shanor of the Wharton School of the University of Pennsylvania.

The case is CTIA – The Wireless Association v. City of Berkeley, California et al., case number 19-439, before the U.S. Supreme Court.

–Additional reporting by Matt Bernardini and Hailey Konnath. Editing by Adam LoBelia.
https://www.law360.com/articles/1226412/justices-won-t-review-berkeley-cellphone-radiation-warning

U.S. Supreme Court rejects challenge to Berkeley cell phone law
Lawrence Hurley, Reuters, Dec 9, 2019

FILE PHOTO: The U.S. Supreme Court building is seen in Washington, U.S., March 26, 2019. REUTERS/Brendan McDermid/File Photo

WASHINGTON (Reuters) – The U.S. Supreme Court on Monday rejected a free speech challenge brought by a trade group against a regulation issued by the California city of Berkeley that requires cell phone retailers to tell customers of certain radiation risks.

The justices left in place a July 2019 decision by the San Francisco-based 9th U.S. Circuit Court of Appeals that refused to block the 2015 regulation that industry group CTIA appealed.

CTIA said the regulation violates the First Amendment to the U.S. Constitution, which protects free speech rights, because the government, without the necessary justification that supports other types of regulations, is forcing retailers to spread a message they disagree with.

The 2015 regulation requires retailers to provider a notice to customers saying that carrying a cell phone can exceed Federal Communications Commission guidelines for exposure to radio-frequency radiation.

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,” the notice says.

CTIA disputed the content of the notice, saying it is misleading because the FCC has concluded that carrying a cell phone is safe.

Reporting by Lawrence Hurley; editing by Grant McCoolhttps://www.reuters.com/article/us-usa-court-mobilephone/u-s-supreme-court-rejects-challenge-to-berkeley-cell-phone-law-idUSKBN1YD1K8
SCOTUSblog, Last update: November 20, 2019

CTIA – The Wireless Association v. City of Berkeley, California

Pending petition

Docket No.Op. BelowArgumentOpinionVoteAuthorTerm
19-4399th Cir.TBDTBDTBDTBDTBD

Issues: (1) Whether reduced scrutiny of compelled commercial speech under Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio applies beyond the need to prevent consumer deception; and (2) whether, when Zauderer applies, it is sufficient that the compelled speech be (a) factually accurate – even if controversial and, when read as a whole, potentially misleading; and (b) merely reasonably related to any non-“trivial” governmental interest.

DateProceedings and Orders (key to color coding)
Sep 30 2019Petition for a writ of certiorari filed. (Response due November 1, 2019)
Oct 03 2019Blanket Consent filed by Petitioner, CTIA – The Wireless Association®
Oct 04 2019Blanket Consent filed by Respondent, City of Berkeley, California, et al.
Oct 30 2019Brief amicus curiae of Pacific Legal Foundation filed.
Oct 31 2019Brief amici curiae of Institute for Justice and National Federation of Independent Business filed.
Oct 31 2019Brief amicus curiae of Association of National Advertisers, Inc. filed.
Nov 01 2019Brief amici curiae of Retail Litigation Center, Inc.,et al. filed.
Nov 01 2019Brief amicus curiae of Washington Legal Foundation filed.
Nov 01 2019Brief of respondents City of Berkeley, California, et al. in opposition filed.
Nov 01 2019Brief amicus curiae of The Cato Institute filed.
Nov 19 2019Reply of petitioner CTIA – The Wireless Association® filed.
Nov 20 2019DISTRIBUTED for Conference of 12/6/2019.

https://www.scotusblog.com/case-files/cases/ctia-the-wireless-association-v-city-of-berkeley-california/
Related posts on Electromagnetic Radiation SafetyBerkeley Cell Phone “Right to Know” Ordinance
Berkeley Cell Phone “Right to Know” Ordinance: Media Coverage

Joel M. Moskowitz, Ph.D., Director
Center for Family and Community Health
School of Public Health
University of California, Berkeley

Electromagnetic Radiation Safety

Website: https://www.saferemr.com
Facebook: https://www.facebook.com/SaferEMR
Twitter: @berkeleyprc

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