Monday, 20 May 2019

Court denies San Francisco’s request to review blocked cell phone health warning case



A US appeals court has denied a request by lawyers for the city of San Francisco to review an earlier ruling which blocked the city’s controversial law which required cell phone retailers to distribute fact sheets that warn customers of potential radiation risks.


In September 2012, a three judge panel of the US 9th Circuit Court of Appeals ruled against San Francisco’s law, saying that the city cannot require retailers to distribute fact sheets that warn against the potential harm of cell phone signals because the information was not “purely factual and uncontroversial”.


A month after the judges unanimously prohibited San Francisco’s ‘cell phone right-to-know ordinance’ from taking effect, City Attorney Dennis Herrara submitted a petition for an en banc review, which would have required a random selection of 11 of all 29 of the 9th Circuit Court judges to review the case.


The city attorney’s petition claimed a full review of the case was in order because the court’s three judge panel “did not provide meaningful answers” in their ruling and “instead, it struck down this first-of-its-kind ordinance, duly enacted by the elected representatives of the people of San Francisco, in a two-page unpublished memorandum.”


However, in a February 27 ruling the court denied the city’s request to review the judgement and said they would not entertain any further petitions for rehearing the case.


In a response to the city’s earlier request, the US group representing the mobile phone industry, the CTIA, said that there was no legal reason for a review.


“The principles underpinning the panel decision - that government may not compel the expression of subjective opinions and “recommendations” regarding a matter of public controversy and debate - are well established in Supreme Court and Ninth Circuit precedent,” the CTIA response said.


“A panel of this Court unanimously and correctly concluded that, in light of the federal safety standards and the absence of any known adverse effects, the City’s required statements are misleading and not purely factual, and therefore violate the First Amendment.”


“In short, the City fails to meet the standard for rehearing en banc and its petition should be denied.”


The September 2012 ruling to block the law was issued by Judges Mary Schroeder and Consuelo Callahan and U.S. District Judge Edward Korman of New York, temporarily assigned to the court.


The decision left the city’s lawyers with three options: ask the 9th Circuit Court or the U.S. Supreme Court to review the case, go back to the U.S. District Court to have a full trial or repeal the law in line with the judges’ decision.



The 9th Circuit Court said none of its 29 judges had requested a vote on whether to review the case en banc, so the city’s request was denied and the court’s earlier decision to uphold the ban on the controversial law remained in place.


  9th Circuit judges  
  Judges Schroeder, Callahan and Korman of the 9th Circuit Court of Appeals ruled San Francisco cannot force retailers to distribute fact sheets that are not purely factual.  

The law first enacted by San Francisco in 2010 would have required retailers to give each cell phone buyer a fact sheet saying the World Health Organization had classified the phones' radio-frequency emissions as a “possible carcinogen.”


The sheet also showed human silhouettes absorbing radiation and suggests protective measures, like wearing headsets, making shorter calls and limiting use by children.


Stores would have had to put similar messages on large wall posters and on stickers attached to display ads.


In 2011 a U.S. District Court Judge, William Alsup, ruled that parts of San Francisco's ordinance went too far, conveying what he called a misleading message that cell phones are dangerous.


“The overall impression left is that cell phones are dangerous and that they have somehow escaped the regulatory process," Judge Alsup wrote.  “That 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.”


He told the city to delete the silhouettes and modify its fact sheet, but said it could still compel retailers to disclose undisputed facts about a “plausible public health threat.”


The CTIA said the revised fact sheet, although preferable to the original version, still violated freedom of expression and the appeals court agreed.


The city's fact sheet, even in the scaled-back version approved by Judge Alsup, “contains more than just facts,” the appeals court said in a 3-0 ruling.


Consumers could interpret the list of protective measures as “expressing San Francisco's opinion that using cell phones is dangerous,” the three judges concluded.


That view is debatable, the appeals court said, citing the Federal Communications Commission's findings that the phones are safe when radiation emissions are within the agency's approved limits.


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