A battle over a law in Berkeley, California that requires cell phone retailers to warn customers about possible radiation exposure could have far-reaching consequences, the Association of National Advertisers warns.
The group is backing a request by wireless carriers who are seeking to block the law on the grounds that it violates free speech principles. If the measure stands, "there is almost no limit to the messages public officials at all levels of government might compel," the ANA says.
The group is weighing in as a friend-of-the-court in a lawsuit brought by CTIA -- The Wireless Association against Berkeley. The dispute dates to 2016, when the CTIA sought an injunction against a Berkeley ordinance requiring retailers to post radiation warnings.
Berkeley's law requires stores to include the following language in their warnings: "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."
The Federal Communications Commission independently requires cell phone manufacturers to issue a similar warning.
The CTIA contended that Berkeley's mandate was unconstitutional, arguing that the First Amendment restricts the government's ability to compel speech. A trial judge ultimately rejected the CTIA's position, and last month a divided panel of the 9th Circuit Court of Appeals upheld that decision.
The appellate judges ruled that the law is a permissible regulation of commercial speech. "Compelled disclosure of commercial speech complies with the First Amendment if the information in the disclosure is reasonably related to a substantial governmental interest and is purely factual," the majority opinion states.
The CTIA argued that the warning was misleading because there's no proof that radiation from cell phones is dangerous to consumers. But the appellate panel said Berkeley merely requires retailers to post information that the FCC has already decided that consumers should know.
The wireless group is now seeking a new hearing in front of at least 11 of the 9th Circuit's 29 judges. On Thursday, the ANA filed a friend-of-the-court brief backing that request.
"The government may not require private parties to vilify their own products, and certainly cannot require misleading statements about them," the ANA argues in legal papers filed Thursday with the 9th Circuit Court of Appeals.
"Berkeley is free to hold or express its own opinions about cellphone safety, even those contradicted by scientific evidence," the ANA writes. "But the panel decision enables the government to require others to convey its message, even though the City offers no reason why consumers cannot read neutrally-presented information already provided with their phones, or why it cannot deliver its own message."