CTIA – The Wireless Ass’n v. City and Cnty. of S.F., Cal.: District Court Strikes Poster and Sticker Requirements from San Francisco Cell Phone Health Risk Ordinance

Digest Commentary First Amendment

CTIA – The Wireless Ass’n v. City and Cnty. of S.F., Cal., No. C 10-03224 WHA (N.D. Cal. Oct. 27, 2011) Slip Opinion hosted by Justia.com

The District Court for the Northern District of California, ruling on a motion for preliminary injunction against San Francisco’s “Cell Phone Disclosure Requirements” ordinance, temporarily stayed the measure until necessary revisions were made.

The ordinance requires cell phone retailers to inform customers of the possible harmful effects of cell phone radiation by displaying informational posters on its walls, placing stickers on other displays, and providing a fact-sheet to customers, regardless of whether they purchased a cell phone or not.

Judge William Alsup concluded that changes must be made to the fact-sheet to comply with the First Amendment. He further held that the posters and stickers were unconstitutional, even with the changes.

TechCrunch provides an overview of the case. Ars Technica mentions a recently conducted study showing no link between cancer and cell phone usage. 

The plaintiff, CTIA – The Wireless Association, filed this motion for preliminary injunction against the cell phone right-to-know ordinance adopted by San Francisco, which requires that cell phone retailers inform their customers about radiofrequency (“RF”) energy emissions from cell phones and precautions that may reduce exposure to such emissions.

The main provisions of the ordinance require cell phone retailers to: (1) “display in a prominent location visible to the public, within the retail store, an informational poster developed by the Department of the Environment”; (2) provide “every customer that purchases a cell phone [or any customer who so requests] a free copy of an informational fact-sheet developed by the Department of the Environment”; and (3) paste an informational sticker on “display materials in connection with sample phones or phones on display.” Slip op. at 3 (internal quotation marks omitted).

Judge Alsup concluded that the fact-sheet would be constitutional with a few changes, but that the sticker and the poster requirements were in violation of the First Amendment and therefore must be removed from the ordinance. Specifically, Judge Alsup stated:

In the commercial marketplace, the First Amendment permits a government to require businesses to disclose accurate and uncontroversial facts as long as the disclosures are reasonably related to a governmental interest in preventing deception of in protecting public health and safety, among other allowable objectives, and a government may do so without meeting any ‘least restrictive means’ test.

Id. at 7.

Although the harmful effects of RF energy emitted from cell phones are under debate, San Francisco has phrased the text in its materials carefully so as to ensure that each statement, on its own, is literally true. Judge Alsup said that the fact-sheet was “misleading by omission.” Id. at 11. He concluded that “the overall impression left is that cell phones are dangerous and that they have somehow escaped the regulatory process,” which is misleading since “all of the cell phones sold in the United States must comply with safety limits set by the FCC.” Id. He also noted that by omitting information about the classification of RF emissions from cell phones as a “possible carcinogen” might lead consumers to believe that cells phones are “more dangerous than [they] really [are].” Id. at 12.

Judge Alsup held that the posters and stickers were unconstitutional, even with the changes he suggested for the fact-sheet. Specifically, he stated that “the large wall poster is not reasonably necessary and would unduly intrude on the retailers’ wall space.” Id. at 13.  Similarly, the stickers “would unduly interfere with the retailers’ own right to speak to customers.” Id.

San Francisco has until November 4 to agree on a revised fact-sheet conforming to the court’s order. The entire ordinance is temporarily stayed through November 30.

Heejin Choi is a 1L at the Harvard Law School.