Judge William Fletcher United States Court of Appeal for the Ninth Circuit

Berkeley cell phone purveyors will continue to have to warn consumers about devices' potential to expose users to radio-frequency radiation, following a ruling from the U.S. Court of Appeals for the Ninth Circuit.

On Tuesday, a Ninth Circuit panel affirmed the District Court for the Northern District of California's denial of a preliminary injunction brought by telecommunications industry group CTIA—The Wireless Association. The organization's request for preliminary injunction aimed to stay enforcement of Berkley's ordinance requiring cell phone retailers to distribute pamphlets warning buyers of radio frequency exposure and referring them to user manuals for safe handling instructions.

Gibson, Dunn and Crutcher attorneys for CTIA argued the handouts amounted to compelled speech under the First Amendment and that the ordinance was preempted. Judge William Fletcher of the U.S. Court of Appeals for the Ninth Circuit said CTIA's argument that Berkeley is violating its First Amendment rights does not hold, since the city is referring users to a warning the Federal Communications Commission requires cell phone manufacturers to include.

“The disclosure underlying Berkeley's ordinance is the disclosure the FCC requires cell phone manufacturers to provide to consumers,” Fletcher wrote. “However, CTIA has not sued the FCC. Rather, CTIA has sued Berkeley. Berkeley's ordinance requires cell phone retailers to disclose, in summary form, the information to consumers that the FCC already requires cell phone manufacturers to disclose. The Berkeley disclosure directs consumers to user manuals for the specifics of the information required by the FCC.”

Gibson Dunn attorney Helgi Walker referred a request for comment to CTIA.

“Radiofrequency energy from wireless devices and networks, including 5G, has not been shown to cause health problems, according to the consensus of the international scientific community,” said a spokesperson for the CTIA. “We are disappointed that the city of Berkeley continues to mislead the public.”

Although both CTIA and Berkeley both agree the ordinance is an example of regulation of commercial speech, CTIA also asserted that the Zauderer exception to the rule of Central Hudson established in Zauderer v. Office of Disciplinary Counsel does not apply, because the compelled speech does not prevent consumer deception.

The opinion marks the first time the Ninth Circuit has addressed whether the Zauderer compelled-disclosure test applies outside of a context of deception prevention. Taking cues from sister district courts and the Supreme Court, the panel held that “the governmental interest in furthering public health and safety is sufficient under Zauderer so long as it is substantial.”

In response to CTIA's claims that the compelled disclosure is not “purely factual” within the meaning of Zauderer, the court took the warning line by line and decided each was literally true.

In a dissent in part, Judge Michelle Friedland of the U.S. Court of Appeals for the Ninth Circuit said that although each line might be literally true, consumers will take a more holistic view of the disclosure. “Taken as a whole, the most natural reading of the disclosure warns that carrying a cell phone in one's pocket is unsafe,” Friedland wrote. “Yet Berkeley has not attempted to argue, let alone to prove, that message is true.”

Berkeley City Attorney's Office and Lawrence Lessig, law professor at Harvard Law School, who represented the city in the case, also did not immediately respond to a request for comment.