A divided federal appeals court decided Tuesday that a Berkeley ordinance requiring cellphone retailers to warn customers of possible radiation does not violate the 1st Amendment.
In a 2-1 split, a panel of the U.S. 9th Circuit Court of Appeals said the Berkeley law requires a notice that is literally true and not overly burdensome to retailers.
The ordinance, in effect since 2016, says retailers must warn customers in writing that carrying a cellphone in certain ways may cause them to exceed federal guidelines for exposure to radio-frequency radiation.
The 9th Circuit upheld the ordinance in 2017, but a trade association of cellphone retailers took the case to the U.S. Supreme Court.
The high court said the 9th Circuit should reconsider its earlier decision in light of a Supreme Court ruling that anti-abortion pregnancy centers should not be required to notify clients that they might qualify for government assistance for abortions.
The 9th Circuit majority distinguished the cases, saying the notices required by Berkeley were “hardly inflammatory” and simply repeated language the Federal Communications Commission requires sellers to put in their user manuals.
Unlike the abortion case, Berkeley’s law “does not force cellphone retailers to take sides in a heated political controversy,” Judge William A. Fletcher, a Clinton appointee, wrote for the majority.
“Berkeley properly asserts that it has a substantial interest in protecting the health of its citizens,” the 9th Circuit said. The cellphone retailers have failed to establish “any hardship tipping the balance in its favor.”
Judge Michelle T. Friedland, an Obama appointee, dissented, arguing the ordinance should be blocked because it conveys a misleading message.
“Taken as a whole, the most natural reading of the disclosure warns that carrying a cellphone in one’s pocket is unsafe,” she wrote. “Yet Berkeley has not attempted to argue, let alone to prove, that message is true.”
She said the FCC guidelines incorporate a “many-fold safety factor” and note that exposure in excess of the guideline level was still safe.
“If Berkeley wants consumers to listen to its warnings, it should stay quiet until it is prepared to present evidence of a wolf,” she wrote.