Court Rules that Berkeley's "Overwarning" Ordinance on RF Emissions is Preempted

On September 17, the U.S. District Court for the Northern District of California ruled that a 2015 City of Berkeley ordinance requiring retailers to provide specific warning labels regarding cellphone radio frequency (RF) emissions for point-of-sale purchases is preempted by the FCC's regulatory actions. 

After analyzing the Commission's 2019 RF Order as well as the agency's Statement of Interest filed in the case, the District Court concluded:  

Given the specificity of the warning required by the Berkeley ordinance, the implied risk to safety if the warning is not followed (a risk the FCC has concluded does not exist), and the acknowledged 'controversy concerning whether radio-frequency radiation from cell phones can be dangerous if the phones are kept too close to a user's body over a sustained period,'… the FCC could properly conclude that the Berkeley ordinance – as worded – overwarns and stands as an obstacle to the accomplishment of balancing federal objectives by the FCC.

The District Court's ruling in Berkeley v. CTIA applied Skidmore deference rather than Chevron deference to both the 2019 RF Order and the Statement of Interest. The court held that even by according to the less deferential standard the Berkeley ordinance conflicted with federal policy articulated by the Commission. Along the way, the court provided an insightful analysis of conflict preemption doctrine, savings provisions, and the Third Circuit's 2010 decision in Farina v. Nokia. For more on this case, see my blog post from June.