San Francisco Says Radiation-Disclosure Law Change Dooms CTIA Court Challenge
Dropping disclosure of a radiation measurement from a San Francisco ordinance on cellphone sales “removes any reasonable legal objection that CTIA could have” to the legislation, said a city lawyer. The association’s announcement that enactment of a new version of the ordinance would prompt revival of a suspended court challenge (CD Aug 5 p7) came as no surprise, said Deputy City Attorney Vince Chhabria: CTIA had made it clear that the lawsuit would go away only if the regulation did. “Even if they have a 2 percent chance of winning, it’s worth the pocket change” of perhaps $500,000 in legal costs for the association to pursue the First Amendment and federal preemption case in U.S. District Court in San Francisco, he said.
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The outcome is of much more than local interest, Chhabria said. “A lot of jurisdictions,” cities from around Northern California and as far as the East Coast, have expressed interest to San Francisco in its regulation, “but all are waiting to see the outcome of the litigation” before deciding whether to act, he said.
The new ordinance undercuts CTIA’s position because it “removes the risk of consumers’ being misled” by the disclosure materials to be required, Chhabria said late Friday. It requires disclosure of generic information about health questions and emphasizes ways that radiation exposure can be minimized, such as by using a headset and keeping the phone away from the body, he said. The revision also improves on its predecessor by requiring merchants to give an information sheet to every cellphone purchaser rather than on request, he said.
The original version would have required disclosure of the Specific Absorption Rate (SAR) of each handset on sale, and that could have led shoppers to mistaken comparisons of the likely radiation from competing phones, Chhabria said. The main reason is that a handset for a GSM network must run at a much higher power level than one for CDMA and so would emit much more radiation even if its SAR is lower. There are efforts to create a measurement that would allow apples-to-apples comparisons of handset radiation, but no simple one has been validated, Chhabria said.
CTIA will amend its complaint, originally aimed at the first ordinance, and seek a preliminary injunction against enforcement of the new one, Chhabria said. It must wait for the city to decide on the specific content of the disclosure materials, he said. That requires a notice-and-comment process that will probably take until early September, Chhabria said.
"The City’s original ordinance misinterpreted federal SAR information in a way that the City now concedes would have misled consumers,” CTIA Vice President John Walls said in a written statement Monday. “Unfortunately, the amended ordinance is no better, because it continues to force cellphone retailers to make statements that suggest there is a public health problem and may confuse consumers. CTIA intends to challenge the new ordinance because it conflicts with the conclusions of the expert federal agencies, including the National Cancer Institute, the FDA and the FCC, that the weight of scientific evidence has not linked cell phones with any health problems.”