split panel upholds Berkeley cell disclosure law

CTIA-The Wireless Ass’n v. City of Berkeley, No. 16-15141
(9th Cir. Apr. 21, 2017)
A City of Berkeley ordinance requires cell phone retailers
to inform prospective cell phone purchasers that carrying a cell phone in
certain ways may cause them to exceed FCC guidelines for exposure to
radio-frequency radiation. The court of appeals affirmed the denial of a
preliminary injunction both on First Amendment and preemption grounds (which I
will not mention further)
Berkeley passed an ordinance requiring cell phone retailers
to disclose information to prospective cell phone purchasers about the federal
government’s radio-frequency radiation exposure guidelines relevant to cell
phone use. Since cell phones are no longer commonly carried in a holster or
belt clip, but closer to the body, humans are exposed to more RF radiation from
them than they would be if they were carried away from the body or used with
hands-free devices, which is inconsistent with the FCC’s safety recommendations
(also disclosed in cellphone manuals).  The
city found that consumers aren’t generally aware of those safety
recommendations.  The city found that the
existing disclosures/warnings “are often buried in fine print, are not written
in easily understood language, or are accessible only by looking for the
information on the device itself.”
One sentence of the initial disclosure said: “The potential
risk is greater for children.” The district court held that this sentence was
preempted, and Berkeley re-passed the ordinance without that sentence. Now,
cellphone retailers have to provide a notice indicating that Berkeley required
the statement that:
To assure safety, the Federal
Government requires that cell phones meet radio- frequency (RF) exposure
guidelines. 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. Refer to the
instructions in your phone or user manual for information about how to use your
phone safely.
The disclosure must be either on a prominently displayed
poster no less than 8½ by 11 inches with no smaller than 28-point font, or on a
handout no less than 5 by 8 inches with no smaller than 18-point font, with the
city’s logo. A retailer may include additional information on the poster or
handout “if it is clear that the additional information is not part of the compelled
disclosure.”
The court of appeals began by pointing out that this
disclosure is a summary form of a disclosure already compelled by the FCC, but
CTIA didn’t sue the FCC.  Under Zauderer, “the government may compel
truthful disclosure in commercial speech as long as the compelled disclosure is
‘reasonably related’ to a substantial governmental interest,” whether or not
the compelled speech is directed at preventing consumer deception.  Preventing deception is one substantial
interest, but “any governmental interest will suffice so long as it is substantial”
rather than trivial—the interest must be more than the satisfaction of mere
“consumer curiosity.”
“Given that the purpose of the compelled disclosure is to
provide accurate factual information to the consumer, we agree that any
compelled disclosure must be ‘purely factual.’” But Zauderer’s reference to “uncontroversial”
disclosures referred to the factual accuracy of the compelled disclosure, “not to
its subjective impact on the audience.” The disclosure in Zauderer might have caused controversy, “for example by
discouraging customers from hiring lawyers who offered contingency-fee
arrangements because they feared ‘hidden costs’ or by harming the reputation of
the lawyers who offered such fee arrangements,” but that didn’t make it
invalid.
The court of appeals found that protecting the health and
safety of consumers is a substantial governmental interest.The FCC’s limits on
RF radiation exposure furthered the interest of protecting the health and
safety of cellphone users, both by setting low limits (with really large safety
margins) and by compelling disclosures that would allow users to avoid
exceeding those limits. Berkeley’s ordinance furthered that same interest,
given that the evidence showed that most consumers were unaware of the FCC’s
advice.
CTIA argued that RF radiation from cellphones hadn’t been
proven dangerous to consumers.
But this is beside the point. The
fact that RF radiation from cell phones had not been proven dangerous was well
known to the FCC in 1996 when it adopted SAR limits to RF radiation; was well
known in 2013 when it refused to exclude cell phones from its rule adopting SAR
limits; and was well known in 2015 when it required cell phone manufacturers to
tell consumers how to avoid exceeding SAR limits. After extensive consultation
with federal agencies with expertise about the health effects of
radio-frequency radiation, the FCC decided, despite the lack of proof of
dangerousness, that the best policy was to adopt SAR limits with a large margin
of safety.
The court wasn’t going to disagree with the conclusions of the
agency and the city that this compelled disclosure was “reasonably related” to
protection of the health and safety of consumers.

The disclosure was also purely factual. The majority broke down the disclosure
and found that each statement was true:
(1)        “To
assure safety, the Federal Government requires that cell phones meet
radio-frequency (RF) exposure guidelines.”
(2)       
“If you carry or use your cell 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.”
(3)        “Refer
to the instructions in your phone or user manual for information about how to
use your phone safely.” (This was an instruction that implied truthfully that
information about safe use could be found in a manual.)
Some literally true statements can still be misleading, and
CTIA argued that this disclosure was, by requiring “an inflammatory warning
about unfounded safety risks” that suggested that the federal limit was the
line between safe and unsafe exposure, and that used “the inflammatory term
‘radiation,’ which is fraught with negative associations, in order to stoke
consumer anxiety.”
That wasn’t how the majority read the text; telling
consumers that cellphones are required to meet federal “RF exposure guidelines”
in order “[t]o assure safety” “assures consumers that the cell phones they are
about to buy or lease meet federally imposed safety guidelines.”  The second sentence, telling consumers what
to do to avoid exceeding federal guidelines, wasn’t reassuring, but neither was
it inflammatory: it contained information that the FCC wants consumers to know
for their safety. The phrase “RF radiation” is precisely the phrase the FCC has
used from the beginning, as well as the technically correct term.  A cellphone retailer who’s concerned about
implications can add a further statement; there was no evidence that any had
found this desirable, or that cellphone sales had decreased in Berkeley.
Thus, there was no likely success on the merits. The public
interest also weighed against CTIA, in that the public interest favors “the
robust and free flow of accurate information,” and “requiring disclosure of
truthful information promotes that goal.”
Judge Friedland dissented in part, arguing that the
disclosure was indeed misleading because, “[t]aken as a whole, the most natural
reading of the disclosure warns that carrying a cell phone in one’s pocket is
unsafe,” and Berkeley didn’t show that was true.  The repeated references to safety plainly
conveyed that something unsafe was at issue, and specifically implied that carrying
a phone “in a pants or shirt pocket or tucked into a bra” wasn’t safe. Existing
FCC guidelines “make clear that they are designed to incorporate a many-fold
safety factor, such that exposure to radiation in excess of the guideline level
is considered by the FCC to be safe.”
Also, even if the statement was truthful, the dissent
wouldn’t apply Zauderer when the government’s
aim was something other than to prevent an ad from being misleading.
The dissent ended with a caution about “false, misleading,
or unsubstantiated product warnings”:

Psychological and other social
science research suggests that overuse may cause people to pay less attention
to warnings generally: “[A]s the number of warnings grows and the prevalence of
warnings about low level risks increases, people will increasingly ignore or
disregard them.” Relatedly, “[w]arnings about very minor risks or risks that
are extremely remote have raised concerns about negative effects on the believability
and credibility of warnings. . . . In essence, such warnings represent apparent
false alarms as they appear to be ‘crying wolf.’” If Berkeley wants consumers
to listen to its warnings, it should stay quiet until it is prepared to present
evidence of a wolf.

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