The Environmental Working Group and consumer advocate Public Citizen have filed a brief supporting San Francisco’s decision to require cell phone vendors to provide consumers with a one-page factsheet about potential health risks from cell phone radiation and advice on safer cell phone use.
CTIA-The Wireless Association, the cell phone industry’s leading trade group, is suing the city to prevent the law, enacted in July 2011, from being enforced. CTIA sued San Francisco over an earlier version of the law, enacted in July 2010, which the City subsequently amended.
EWG and Public Citizen’s brief argues that San Francisco can — and should — require cell phone companies to distribute cell phone radiation safety information to consumers at the point of sale. Recent scientific research shows a potential link between long-term cell phone use and increased cancer risks and other adverse health effects.
CTIA contends the ordinance violates the First Amendment — that cell phone companies should not have to disclose information they want to withhold — and disrupts a national regulatory framework overseen by the Federal Communications Commission to ensure cell phone safety. In October 2011, a district court judge ruled that the fact sheet, with a few minor changes, did not breach the companies’ First Amendment rights. The judge rejected the industry claim that San Francisco’s factsheet conflicts with federal law. Other provisions were struck down such as requirements that retailers place informational stickers on cell phones and informational posters in their stores.
CTIA appealed the decision to the U.S. Court of Appeals for the Ninth Circuit, which is expected to hear the case in May or June.
EWG and Public Citizen have entered the lawsuit on behalf of San Francisco because of the organizations’ longstanding interest in using the power of information to protect public health. The Ninth Circuit’s decision could have potentially huge implications for future right-to-know laws regarding cell phone safety. EWG and Public Citizen contend that lawmakers should be able to require disclosure of basic facts about how to use consumer products safely, particularly when the public’s health is at stake.
- First Amendment not violated. Requiring retailers to distribute San Francisco’s factsheet about cell phones does not violate their right to free speech. San Francisco’s factsheet reflects accurate information about cell phone safety. Nothing in the ordinance requires retailers to agree with the content of San Francisco’s factsheet nor prevents them from distributing their own, possibly contrary views about cell phone safety. Existing case law allows the government to impose disclosure requirements that provide factual information about commercial products, particularly possible health and environmental effects are implicated.
- Federal law permits San Francisco’s actions. Neither Congress nor federal regulators have barred cities from passing laws requiring retailers to disclose basic information about potential risks from cell phone radiation and ways to reduce exposure. Although the FCC oversees federal regulation of cell phones, including setting their technical specifications, it is not a public health agency, nor does it pretend to be. San Francisco’s ordinance merely requires distribution of basic cell phone information in the interest of public health. Nowhere does it require that cell phones meet radiation standards more stringent than those set by the FCC. Therefore, San Francisco’s ordinance poses no conflict with federal cell phone regulations.
EWG and Public Citizen’s brief is available here.