• by Wendy Davis  @wendyndavis, October 11, 2017

Rejecting arguments made by the Association of National Advertisers and CTIA-The Wireless Association, the 9th Circuit Court of Appeals has refused to reconsider its recent decision to uphold a Berkeley ordinance that requires cell phone retailers to warn customers about possible radiation exposure.

The ANA and wireless carriers argued that the 2016 Berkeley law violates free speech principles. The measure 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, according to the appellate court.

CTIA sued in 2016 to block Berkeley's law. A trial judge refused to do so, as did a three-judge panel of the 9th Circuit. In May, the wireless carriers asked for a new hearing in front of at least 11 of the circuit's judges; that request was backed by the ANA, which argued that the government "may not require private parties to vilify their own products, and certainly cannot require misleading statements about them."

The 9th Circuit on Wednesday refused to grant a new hearing in the case. Circuit Judge Kim McLane Wardlaw dissented from that decision, writing that a "proliferation of warnings and disclosures compelled by local municipal authorities" could divert consumers' attention from more important warnings.

"Time which a prospective purchaser must spend puzzling over the City of Berkeley’s warning is time not spent acquiring more pertinent product information," Wardlaw wrote.

Wardlaw added that the warnings required by the city are "completely unnecessary in light of the carefully calibrated, FCC-approved disclosures in the user’s manual accompanying each new cell phone."

Dan Jaffe, ANA executive vice president of government relations, warns that the decision could "explode the potential" for inconsistent regulations in other states and towns.

"It's highly likely we'll start seeing similar things all around the country. There are 30,000 plus cities and counties around the country. are all of them going to have these kinds of disclosures?" he asks.

Jaffe adds that new laws requiring certain disclosures pose a threat to advertisers' free speech rights. "These mandatory disclosure requirements that are starting to pop up in California are major dangers to first amendment rights of advertisers," he says.

Last month, a three-judge panel of the 9th Circuit blocked a San Francisco law that would have required health warnings for sugary drinks. A three-judge panel ruled that law likely violates free speech principles for several reasons, including that it was misleading.

"By focusing on a single product, the warning conveys the message that sugar-sweetened beverages are less healthy than other sources of added sugars and calories and are more likely to contribute to obesity, diabetes, and tooth decay than other foods. This message is deceptive in light of the current state of research on this issue," the court wrote in that case.