• by Wendy Davis , June 28, 2018

In an order cheered by advertisers, the Supreme Court on Thursday vacated a lower court ruling that required cell phone retailers to warn customers about possible radiation exposure.

The Supreme Court sent the matter back to the 9th Circuit Court of Appeals for further consideration in light of a separate ruling, issued earlier this week, involving mandatory disclosures. That ruling invalidated a California law requiring those "pregnancy crisis centers" -- which aim to dissuade women from having abortions -- to provide information to patients about the availability of abortion.

The cell phone radiation case centered on a 2016 Berkeley ordinance that requires cell phone retailers to post notices about radiation warnings. The ordinance specified that retailers include the following language: "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.

CTIA -- The Wireless Association sued to invalidate the law, arguing that the measure violated First Amendment principles. The group's request was supported by the Association of National Advertisers, which filed a friend-of-the-court brief.

Last year, the 9th Circuit Court of Appeals upheld the law as 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 is no proof that radiation from cell phones is dangerous. But the appellate panel said Berkeley merely requires retailers to post information that the FCC has already decided that consumers should know.

CTIA then appealed to the Supreme Court, which vacated the earlier ruling. The Association of National Advertisers cheered the Supreme Court's move, calling it a "good outcome."

Earlier this year, the ANA argued to the Supreme Court that the outcome of the fight could influence a wide range of companies.

"The issues in this case transcend cell phones or confusing multi-sentence disclosures on point-of-sale posters and hand-outs," the ANA argued in a friend-of-the-court brief. "They affect any lawful product or service about which the government has something it wants to say and believes commercial speakers should be its messenger. If this view of the law were to prevail, every one of the some 30,000 city, town and county governments in the U.S. would be free to impose whatever disclosures they could "rationally' justify, with virtually no limit to similar efforts targeting other products, even if there is no risk of misleading or deceptive claims."