A landmark Ninth Circuit Court of Appeals upheld the City of Berkeley’s cell phone right to know ordinance rejecting industries argument that the ordinance violates the first amendment. The Berkeley ordinance requires retailers to inform consumers that cell phones emit radiation and that “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.” In upholding this decision, the panel concluded that the public health issues at hand were “substantial” and that the “text of the Berkeley notice was literally true,” and “uncontroversial.”
Further, the panel determined that the Berkeley ordinance did not constitute preemption.
“Far from conflicting with federal law and policy, the Berkeley ordinance complemented and enforced it.”
The panel held that Berkeley’s required disclosure simply alerted consumers to the safety disclosures that the Federal Communications Commission required, and directed consumers to federally compelled instructions in their user manuals providing specific information about how to avoid excessive exposure.
Industry is expected to appeal for a full court en banc review, but this reviewing “panel concluded that CTIA had little likelihood of success based on conflict preemption.”
In response to this court ruling CTIA-v-Berkeley-9th-Circuit-opinion-7-2-2019 Devra Davis, PhD, MPH, President of Environmental Health Trust (EHT) issued the following statement:
“Congratulations to the hard-working indomitable Town Council and Citizens of Berkeley, California for upholding The Right to Know. More than a decade in the making this decision assures the right to know that cell phones emit radiation and that when the phone is touching the body levels can be exceeded.
Democracy rests on an informed public that freely consents to be governed. Reliable information is key to the functioning of our system. The right to know is essential to all citizens. And the duty to warn about potential hazards is an obligation of any company. Wherever the right to know and the duty to warn are not followed democracy itself is imperiled.
Thanks to the Berkeley ordinance billions more will learn that cell phones are two-way microwave radios and our bodies absorb this microwave radiation.