Judge tweaks Berkeley cellphone warning

A federal judge in San Francisco ruled Monday that the city of Berkeley can go ahead with requiring cellphone retailers to provide a warning about possible radiation exposure if one sentence is removed from the message.

The decision was issued by U.S. District Judge Edward Chen in a lawsuit in which an industry group, known as CTIA-The Wireless Association, sought a injunction blocking the warnings. CTIA was formerly called the Cellular Telephone Industries Association.

Berkeley’s ordinance, enacted by the City Council in May, would require retailers to provide the warning to each customer who buys or leases a cellphone. The implementation of the law has been on hold while the lawsuit proceeded.

The planned notice would first inform consumers that the federal government requires that cellphones meet radio frequency exposure guidelines.

It would then warn:

“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.”

Chen said that part of the notice:

“… contains accurate and uncontroversial information – i.e., that the Federal Communications Commision has put limits on RF energy emission with respect to cell phones and that wearing a cell phone against the body (without any spacer) may lead the wearer to exceed the limits.”

The additional sentence that Chen said must be deleted would have said:

“This potential risk is greater for children.”

Chen said the FCC has never made such a statement, and that sentence interfered with federal regulation of the phone industry.

Chen issued a preliminary injunction only against that one sentence, and declined to block the rest of the warning.

CTIA could still seek a full trial on whether a permanent injunction should be issued against the entire warning. The Washington, D.C.-based association could also appeal the ruling and seek a stay during an appeal.

The group’s lead lawyer, Theodore Olson, said in a statement:

“As the federal government has repeatedly recognized, the overwhelming weight of scientific evidence refutes Berkeley’s ill-informed and misleading mandatory warnings about cellphones. … We are confident that ultimately the entire ordinance will be struck down.”

City of Berkeley spokesman Matthai Chakka said:

“We’re pleased with the ruling.”

Chakka said the City Council will discuss amending the ordinance to remove the one sentence at its Oct. 5 meeting. He said “the goal would be” to have the ordinance go into effect in mid-November, 30 days after a second reading of the amendment on Oct. 13.