On June 28, 2018, The U.S. Supreme Court instructed the 9th U.S. Circuit Court of Appeals (“9th Circuit”) to reconsider CTIA-The Wireless Ass’n v. City of Berkeley (2017) 854 F.3d 1105 (CTIA), which upheld a City of Berkeley’s ordinance requiring cellphone retailers to notify buyers that keeping wireless devices in pockets or in other places in close contact with the body could lead to radio-frequency radiation exposure and an increased risk of cancer.
This comes on the heels of the Supreme Court’s decision of June 26, 2018, in National Institute of Family and Life Advocates v. Becerra (2018) DJDAR 6224 (NIFLA), wherein the Supreme Court ruled that California could not require pregnancy centers in California opposed to abortion to post signs informing that the State funds abortion procedures for eligible low-income women.
The Supreme Court instructed the 9th Circuit to reconsider its decision in CTIA light of the holding in NIFLA.
Controlling is the 1985 Supreme Court decision in Zauderer v. Office of Disciplinary Counsel (1985) 471 U.S. 626 (Zauderer), which set the standard for interpreting compelled commercial speech when challenged by First Amendment claims. Zauderer upheld an Ohio requirement that an attorney fully articulate the details of his fee arrangements to clients. The decision has been interpreted by circuit courts to allow the government to compel certain types of commercial speech, if the statements are factual and uncontroversial.
In CTIA, a split panel of the 9th Circuit affirmed a lower court’s ruling denying the plaintiff’s request for preliminary injunction blocking the cell phone ordinance. The lower court held that the requirement complied with the First Amendment because it was reasonably related to a substantial governmental interest and was purely factual.
However, some members of the bench dissented from the majority opinion, arguing that the City of Berkeley failed to adequately establish that carrying a cellphone in one’s pocket is, in fact, unsafe. Moreover, attorneys involved in the CTIA dispute have debated whether the radiation warning is misleading.
According to the National Cancer Institute, cell phones emit radiofrequency energy (radio waves), a form of non-ionizing radiation. Although many studies have examined the potential health effects of non-ionizing radiation from radar, microwave ovens, cell phones, and other sources, there is currently no consistent evidence proving that non-ionizing radiation increases cancer risk.
One study from 2011 by the International Agency for Research on Cancer classified cell phone use as “possibly carcinogenic.” However, the American Cancer Society, the National Institute of Environmental Health Sciences, the U.S. Food and Drug Administration, The U.S. Centers for Disease Control and Prevention, and the Federal Communications Commission have all either noted or concluded that no scientific evidence establishes a causal link between cell phones and cancer.
In light of the Supreme Court’s holding in NIFLA, the cell phone industry eagerly awaits its second bite at the proverbial apple in CTIA to potentially preclude cancer warnings on cell phones in the City of Berkley.