On October 21, TRDaily reported on a Danish study published by the British Medical Journal that "found no link between long-term mobile phone use and tumors of the central nervous system." According to TRDaily, "[t]he study of 358,403 mobile phone subscription holders examined the prevalence of tumors between 1990 and 2007. And researchers concluded in the study that "there were no increased risks of tumours of the central nervous system, providing little evidence for a causal association." So the best evidence continues to confirm the safety of handset devices and undermine claims to the contrary.
Just a few days later, a federal district court in California ruled that a San Francisco ordinance mandating wireless retailers and carriers issue certain city-written health warnings to consumers about health risks posed by radio-frequency (RF) emissions from cell phones was almost entirely constitutional. On October 27, Judge William Alsup ruled that San Francisco's so-called "fact-sheet," poster and sticker requirements were unconstitutional under the First Amendment.
Judge Alsup bluntly called the fact sheet "misleading" for two reasons. First, the fact sheet falsely gave the impression that cell phones are dangerous and the FCC somehow failed to regulate in the area of radio frequency (RF) emissions from wireless devices. According to Judge Alsup, "[t]hat impression is untrue and misleading, for all of the cell phones sold in the United States must comply with safety limits set by the FCC." "[E]ven worse," the judge observed, "the poster and the fact-sheet cite to the FCC's own website as if, should it be consulted, the overall misimpression would be confirmed. Once consulted, however, the FCC's message is very much the opposite."
Second, the fact sheet hinged on a World Health Organization's (WHO) listing of wireless devices as a "possible carcinogen," without explaining that classification's significance—or lack thereof. To put things into perspective, WHO lists 107 substances as "Carcinogenic to humans," 59 substances as "Probably carcinogenic," and 267 substances as "Possibly carcinogenic." As Judge Alsup pointed out, the WHO lists things such coffee and pickled vegetables along with RF electromagnetic fields in its broad "Possibly carcinogenic" category. Judge Alsup also cited a WHO fact-sheet statement that: "A large number of studies have been performed over the last two decades to assess whether mobile phones pose a potential health risk. To date, no adverse health effects have been established as being caused by mobile phone use." "[I]t does not take much to list something as 'possible,' wroge Judge Alsup, but "[t]he uninitiated will tend to misunderstand this as more dangerous than it really is."
Regarding the city's poster requirement, Judge Alsup determined it to be similarly misleading but also "not reasonably necessary and would intrude on retailers' wall space." In addition, Judge ruled that "[t]he 'sticker' requirement is also unconstitutional," since "[t]he stickers would unduly intrude upon the retailers' own message." Judge Alsup therefore upheld "the retailers' own right to speak to customers."
Judge Alsup did give the city the chance to re-write its fact-sheet. But under the judge's ruling, the poster and the sticker are out.
For those interested in administrative law and regulatory policy, the judge's ruling was interesting with regard to the standard of scrutiny to be applied in these kinds of cases. Judge Alsup suggested the U.S. Supreme Court's decision in Industrial Union Department, AFL-CIO v. American Petroleum Institute (1980), an OSHA case, is "of interest because it is one of the few occasions a court has addressed the public policy rationale at issue." In Judge Alsup's words, the case "does suggest the question whether, before the government can burden the speech interests of commercial retailers in the way here proposed, should the government be required to find that it is more likely than not that the substance is harmful."
A commitment to data-driven policymaking, as well as common sense, should prompt regulators to at least find it more likely than not that a substance is harmful before imposing speech-burdening regulations. By contrast, precautionary principle approach would treats an unproven harm as a harm by default, putting the burden of proving a negative on commercial retailers.
Judge Alsup ultimately applied a highly deferential standard to the city's ordinance. The judge analyzed the ordinance "on the presumption that San Francisco may require disclosure of accurate and uncontroversial facts as long as the disclosure requirements are reasonably related to its interest in alerting the public to a possible public health risk and to its interest in suggesting precautionary steps to mitigate the risk." It turns out that the city's misleading cell phone health warning ordinance was almost entirely a flop under that highly deferential standard, for the reasons mentioned earlier.
The bottom line here is that the best evidence continues to show that cell phones are perfectly safe to use and local governments or citizens who still have concerns should direct them to the FCC, which has regulatory jurisdiction over RF emissions.
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