USA: Berkeley Cell Phone ''Right to Know'' Ordinance +

maandag, 21 maart 2016 - Categorie: Juridische Informatie

Bron 1:
25 sept. 2015

Nieuwste informatie:
March 21, 2016

On January 27, Judge Chen lifted the ban on the Berkeley cell phone ordinance. The city is now allowed to enforce the amended cell phone law which requires cell phone retailers to notify their customers about the safety warnings in their cell phone or cell phone manual.

The judge affirmed Berkeley's right to warn its citizens about potential health risks based on federal safety standards. In his ruling, the judge rejected the CTIA's argument that the city's mandated disclosure is controversial and therefore bound by a stricter constitutional analysis.

Berkeley Cell Phone Warning Green-Lighted by Federal Judge

Victory!! Federal Judge Approves Berkeley, CA RF radiation warning.

On Monday, Berkeley’s cell phone radiation warning ordinance was approved by Federal District Court Judge Edward Chen, despite the CTIA’s ridiculous and groundless objections of their 1st Amendment rights (to hide already-existing warnings from customers) being violated. Berkeley has retained Lawrence Lessig, Harvard Law Professor and candidate for President of the United States, to defend the ordinance against industry vultures.

According to, the blog of Joel Moskowitz, School of Public Health at UC Berkeley, who has been covering this issue in depth for some time from a scientific and legal perspective:

On September 21, Federal District Court Judge Edward Chen gave the City of Berkeley a green light to implement the City’s landmark cell phone “right to know” law after deleting one sentence from the safety notification. Cell phone vendors in the City will soon be required to provide customers with a safety warning either by giving the customer a handout or or by posting the following notice in the store:

“The City of Berkeley requires that you be provided the following notice:

To assure safety, the Federal Government requires that cell phones meet radio frequency (RF) exposure guidelines. If you carry or use your phone in a pants or shirt pocket or tucked into a bra when the phone is ON and connected to a wireless network, you may exceed the federal guidelines for exposure to RF radiation. Refer to the instructions in your phone or user manual for information about how to use your phone safely.”

Judge Chen denied the CTIA’s request for a preliminary injunction that would have completely blocked enforcement of the ordinance until the case was fully resolved, see:


Verdere voornamelijk eerdere informatie
Bron 2: .
12 mei 2015

Voor voor een Nederlandse samenvatting zie Bron 6 onderaan.

Berkeley Adopts Cell Phone ''Right to Know'' Ordinance on Unanimous Vote

This evening the Berkeley City Council adopted the cell phone ''right to know'' ordinance on a unanimous vote of 9-0. Berkeley is the first city in the nation to pass a cell phone radiation ordinance since San Francisco disbanded its ordinance after a two-year court battle with the CTIA

Harvard Law Professor Lawrence Lessig helped draft the ordinance and presented it to the Council on behalf of city staff.

The only opposition to the ordinance came from the CTIA--The Wireless Association. The CTIA claims that consumers would be scared if they were directed to read the information that the FCC requires they provide to consumers.

Zie bovenstaande link voor de volledige informatie en verder: .
28 juli 2015

The science of cell phones and brain tumors

California city enacts cell phone law

Bron 3:
20 aug. 2015

Judge suggests he may side with most of Berkeley’s cell phone law

A federal judge suggested Thursday that he would strip Berkeley’s cell phone ordinance of its most far-reaching language — telling customers the devices may pose radiation dangers for children — but might leave the rest of the city’s warning message intact, over industry objections.

The message about risks to children is “controversial” and was not required by the Federal Communications Commission in manufacturers’ product manuals, U.S. District Judge Edward Chen said during a 90-minute hearing in his San Francisco courtroom. But he noted that the rest of the information that Berkeley wants retailers to convey to customers, that carrying a switched-on phone in their pockets or bra might exceed federal radiation-safety standards, is taken from FCC findings.

The city’s lawyer said Berkeley was willing to rewrite or remove the warning message about children. A lawyer for CTIA-The Wireless Association indicated the trade group would challenge any city-imposed warning, even without the language on children, as a violation of free speech. Chen said he would rule at a later date.

S.F. law shot down

CTIA successfully challenged a San Francisco ordinance that would have required cell phone retailers to tell customers the phones could expose them to dangerous levels of radiation, which the World Health Organization considered possibly cancer-causing. The city dropped the ordinance in 2013 after a federal appeals court barred its enforcement.

Berkeley’s ordinance, which was scheduled to take effect June 25 but is on hold during the legal challenge, is more limited. It requires sellers to tell customers that the government sets radio-frequency radiation exposure guidelines for cell phones, but that someone who carries the device in a pants or shirt pocket or tucked into a bra when it is switched on and connected to a network may be exposed at higher levels. The notice must also say that “this potential risk is greater for children.”

Legal heavyweights

The hearing was a bout between legal heavyweights. CTIA’s lawyer was Theodore Olson, the former U.S. solicitor general who successfully represented George W. Bush in the 2000 presidential election dispute and gay rights advocates who fought California’s ban on same-sex marriage. Lawrence Lessig, a Harvard law professor and current Democratic presidential candidate who helped to draft Berkeley’s ordinance, represented the city.

When Chen noted that the government requires manufacturers to disclose product ingredients and post warning labels on cigarettes, Olson said companies cannot be required to pass along any government message that is not entirely “factual and noncontroversial.”

Berkeley’s message is “a controversial, nonfactual, misleading statement ... like putting a big skull and crossbones on the product,” Olson said. Although the FCC found that carrying switched-on phones close to one’s body might exceed federal radiation standards, he said, the commission concluded that cell phones are safe.

Misleading message

Berkeley, he said, is “inserting itself in the marketplace” with a misleading message that it wants retailers to parrot to their customers.

Lessig countered that the city simply wants sellers to pass along “what the FCC has determined is the safety factor,” of which most consumers are unaware.

But Chen said the message about greater risks to children was “not mandated in the same way” by the FCC.

Bron 4:
20 aug. 2015

Mobile industry asks judge to halt Berkeley’s RF disclosures

New ordinance is an echo of San Francisco's failed 2010 attempt.

Can a city make it easier for cell phone users to learn about RF energy?

A federal judge in San Francisco is set to hear arguments today on a city's ability to force cell phone retailers to reiterate government information regarding radiofrequency (RF) energy absorption.

In the civil suit, the American cell phone trade group wants a judge to declare Berkeley’s new municipal ordinance, which would require new such disclosures at the point of sale, invalid. The law, which passed in May 2015, was scheduled to take effect in August 2015, but the legal case aims to halt it.

The case, known as CTIA v. City of Berkeley, pits two giants of the legal world against one another: on the side of the plaintiffs is Ted Olson, a former solicitor general under the George W. Bush Administration. Meanwhile, the defendants are armed with presidential hopeful and rockstar Harvard law professor Lawrence Lessig.

While it’s easy to chalk this story up to yet another chapter in the ongoing saga of Bezerkeley, or the People’s Republic of Berkeley, this lawsuit does not hinge on whether you think that your cell phone will cause some undue health-related harm.

''This has nothing to do with the science of cellphones,'' Lessig, who is representing the city pro bono, told Ars by phone.

''This has to do with what the Federal Communications Commission mandates include in their manual and all this does is say that retailers should make the same information available to consumers. This does not hang or fall on whether cell phones cause cancer. This regulation is just trying to make consumers aware of existing regulation.''

For its part, the CTIA doesn’t think so: after all, it managed to get a similar law stopped in neighboring San Francisco. The lawsuit hinges on the First Amendment: the trade group argues that a government (the city of Berkeley) is forcing phone retailers to speak in a way that it does not agree with. In so doing, the theory goes, it is compelling speech, which the government is not allowed to do.

''CTIA’s members are proud of the service and value they provide to the American consumer,'' Helgi Walker, another lawyer representing the CTIA, told Ars by e-mail.

''Being forced to spread an inaccurate and misleading message to their own customers violates their First Amendment rights.''

On notice

The meaningful portion of the Berkeley law is actually quite short. It requires that a retailer provide, either in the form of a mounted poster, or as a printed handout, this message:

The City of Berkeley requires that you be provided the following notice:

To assure safety, the Federal Government requires that cell phones meet radio frequency (RF) exposure guidelines. If you carry or use your phone in a pants or shirt pocket or tucked into a bra when the phone is ON and connected to a wireless network, you may exceed the federal guidelines for exposure to RF radiation. This potential risk is greater for children. Refer to the instructions in your phone or user manual for information about how to use your phone safely.

Berkeley Municipal Code § 9.96.030(A)
In essence, the Berkeley law wants to make the existing radiation disclosures for cell phones more obvious.

One of the primary ways that radiation from a phone is measured is through something called the Specific Absorption Rate (SAR)—in other words, how fast a given amount of energy is absorbed by the human body, measured in watts per kilogram.

Since 1996, the FCC has required that all cell phones sold in the United States not exceed an SAR limit of 1.6 watts per kilogram (W/kg), as averaged over one gram of tissue.

On most phones, it’s not at all obvious what the SAR value for a given handset is. On the iPhone 5—the author’s phone—for instance, the information is buried four menus deep, and even then requires clicking yet another link.

As the FCC states on its website:

The FCC requires that cell phone manufacturers conduct their SAR testing to include the most severe, worst-case (and highest power) operating conditions for all the frequency bands used in the USA for that cell phone. The SAR values recorded on the FCC’s authorization and in the cell phone manual to demonstrate compliance with Commission rules indicate only the highest single measurement taken for each frequency range that the particular model uses. FCC approval means that the device will never exceed the maximum levels of consumer RF exposure permitted by federal guidelines, but it does not indicate the amount of RF exposure consumers experience during normal use of the device. While only the maximum SAR values are used for FCC approval, all test reports submitted by the manufacturer are available in full for public inspection on the Commission’s website.

The agency adds: ''For users who are concerned with the adequacy of this standard or who otherwise wish to further reduce their exposure, the most effective means to reduce exposure are to hold the cell phone away from the head or body and to use a speakerphone or hands-free accessory.''

Back in 2010, the city and county of San Francisco passed a similar ordinance that required retailers to provide the SAR value for each display phone and related printed literature as to what that SAR value means. The ordinance, which was signed into law by then-Mayor Gavin Newsom, would have imposed a fine of $500 for each violation.

The CTIA sued in July 2010, arguing that the city could not supercede federal laws and regulations by imposing its own requirements. The city then changed the law in January 2011 requiring a particular sticker that stated: ''Your head and body absorb RF Energy from cell phones. If you wish to reduce your exposure, ask for San Francisco's free factsheet.''

By October 2011, the judge in the San Francisco case found that the poster and sticker requirements were in violation of the First Amendment, but allowed the handouts to proceed in a modified form. The CTIA appealed to the Ninth Circuit and won. San Francisco declined to appeal further and eventually settled the case, agreeing that its legislation was unconstitutional.

So how safe is safe, anyway?

Given San Francisco’s experience, Lessig and his Berkeley partners chose to make the East Bay city’s ordinance much simpler.

''It's not a similar law,'' Lessig told Ars. ''San Francisco’s law was trying to persuade people to not use cell phones, premised on the view that cell phones are unsafe. What we did when we crafted this law was to self-consciously distinguish that law from this law. That was challenging cell phone science, we are not interested in challenging cell phone science.''

For its part, the CTIA sees the Berkeley case as an exact echo of what came earlier.

''It’s very much the same—in both cases, a city sought to force CTIA’s members to disseminate its unfounded opinion on this issue,'' Helgi Walker added.

''Given that the district court and the Ninth Circuit struck down San Francisco’s prior effort to compel similarly inaccurate and misleading speech, we are confident the Ordinance will likewise be invalidated.''

Specifically, in the Berkeley case, the CTIA argued:

By using words and phrases such as ''assure safety,'' ''radiation,'' ''potential risk,'' ''children,'' and ''how to use your phone safely,'' the City’s unsubstantiated compelled disclosure is designed to convey a particular message that will stoke fear in consumers about the dangers of cell phones: ''Do not carry your cell phone in your pants or shirt pocket, or in your bra, when powered ON and connected to the wireless network, because by doing so, you may absorb more RF radiation than is safe, as determined by the Federal Government. The risk of exposure to unsafe levels of RF energy is greater for children.''

But CTIA’s members do not wish to convey that message, because it is not true. As explained above, the FCC has stated that even where the RF emissions limit is exceeded, there is ''no evidence that this poses any significant health risk.'' Reassessment, ¶ 251. It has also concluded that RF energy from FCC-approved cell phones poses no heightened risk to children. Berkeley’s compelled disclosure is misleading because it fails to explain that the FCC guidelines already take account of the fact that consumers may use cell phones in different ways, and that cell phones are used by people of different ages and different sizes. In short, when a cell phone is certified as compliant with the FCC’s guidelines, that phone is safe, however it is worn, even if a particular usage results in exposure ''well above'' the limit.

Helgi Walker, the CTIA lawyer, noted that the FCC doesn’t specifically require formal warnings, but rather recommends that cell phone makers should provide some information about RF emissions.

''The City admitted, in its answer to our complaint, that its required notice goes beyond these disclosures,'' she told Ars by e-mail. ''Berkeley’s Ordinance upsets the careful and measured balance that the FCC struck between sound, scientifically-based considerations of safety, on the one hand, and encouraging commerce in highly useful and beneficial products, particularly those which allow efficient, effective and often vital means of communication to all citizens, on the other.''

Some First Amendment experts, including the non-profit advocacy group Public Citizen, think that this is a bit of a stretch.

''I think it's telling that they have to rephrase the disclosure in order to get that message and if you look at it, that's just not what it says,'' Julie Murray, a lawyer with Public Citizen, told Ars. (The group filed an amicus brief on behalf of San Francisco in the earlier case.)

For his part, Lessig is sticking to his guns.

''What's striking is that CTIA is invested in framing this case in the same way that the San Francisco case was framed as an attack on cellphones,'' he added. ''As if all Berkeley did was pick up a copy of San Francisco’s law and pass it. You might wonder why is one of the most important lawyers in America arguing this case? The important thing to see is that corporations are incredibly eager to make it very difficult for localities to be able to regulate in all sorts of contexts.''

''My motivation is simply to enable Berkeley to give its citizens the information its citizens say that they want, about how to use a cellphone in a way they think is safe—that's all it's about.''

Bron 5:
21 sept. 2015

Berkeley Cell Phone ''Right to Know'' Ordinance

On September 21, Federal District Court Judge Edward Chen gave the City of Berkeley a green light to implement the City’s landmark cell phone “right to know” law after deleting one sentence from the safety notification. Cell phone vendors in the City will soon be required to provide customers with a safety warning either by giving the customer a handout or or by posting the following notice in the store:

“The City of Berkeley requires that you be provided the following notice:

To assure safety, the Federal Government requires that cell phones meet radio frequency (RF) exposure guidelines. If you carry or use your phone in a pants or shirt pocket or tucked into a bra when the phone is ON and connected to a wireless network, you may exceed the federal guidelines for exposure to RF radiation. Refer to the instructions in your phone or user manual for information about how to use your phone safely.”

Judge Chen denied the CTIA's request for a preliminary injunction that would have completely blocked enforcement of the ordinance until the case was fully resolved.

The Court required the City to strike the following seven words from the 82-word safety warning: “This potential risk is greater for children.” The judge ruled that although this sentence may be factual, it can be argued that it is controversial because the FCC does not acknowledge that children's exposure to cell phone radiation is greater than adults. For the facts supporting this assertion, see ''Children are more exposed to cell phone radio-frequency radiation than adults.''

Kriss Worthington, the Berkeley City Council Member who co-sponsored the ordinance, issued the following statement today via email:

''I am pleased to report that in spite of massive attacks by the corporations they were unable to persuade the judge from taking away the consumer’s right to know in a drastic injunction. Instead the judge requested one simple sentence to be modified. The City is moving rapidly to vote on October 6th on that one sentence modification. Thank you all for your incredible efforts on behalf of the consumer’s right to know.''

Berkeley Mayor Tom Bates declared victory in an interview with SFGate. He called the warning about children, a “relatively small problem” that the City Council will remedy:

“Judge Chen’s order upholding the main part of our cell phone ordinance confirms that the cell phone industry’s claims were ill founded,” Bates said.

Harvard Law Professor Lawrence Lessig, the attorney representing the City of Berkeley on this case, told Ars Technica he was pleased with the ruling:

''The rest of the ordinance survived First Amendment review, which was a very important victory and I couldn't find a single sentence in Judge Chen's opinion that I disagreed with, so I'm quite happy,'' he said.

Lessig posted the following comment in his blog about the case:

''Judge Chen has issued a very careful and well crafted opinion upholding almost every part of the Berkeley “right to know” ordinance. (The one part he found preempted was the part that said that the risk of overexposure was greater for children.) Importantly, the Court rejected the First Amendment claims made by CTIA. Really happy to have had a chance to participate in getting this corner of the law right.''

The Court's ruling on the injunction stipulates:

“ … the Court grants in part and denies in part CTIA’s motion for a preliminary injunction. The motion is granted to the extent the Court finds a likely successful preemption claim with respect to the sentence in the City notice regarding children’s safety. The motion is denied to the extent the Court finds that a First Amendment claim and preemption claim are not likely to succeed on the remainder of the City notice language.”

“’A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.’”

“ … the thrust of CTIA’s complaint is twofold: (1) the Berkeley ordinance is preempted by federal law and (2) the ordinance violates the First Amendment.”

“This disclosure, for the most part, simply refers consumers to the fact that there are FCC standards on RF energy exposure – standards which assume a minimum spacing of the cell phone away from the body – and advises consumers to refer to their manuals regarding maintenance of such spacing. The disclosure mandated by the Berkeley ordinance is consistent with the FCC’s statements and testing procedures regarding spacing … the ordinance does not ban something the FCC authorizes or mandates. And CTIA has failed to point to any FCC pronouncement suggesting that the agency has any objection to warning consumers about maintaining spacing between the body and a cell phone. Moreover, the City ordinance, because it is consistent with FCC pronouncements and directives, does not threaten national uniformity.”

“There is, however, one portion of the notice required by the City ordinance that is subject to obstacle preemption – namely, the sentence ’This potential risk is greater for children.’ Notably, this sentence does not say that the potential risk may be greater for children; rather, the sentence states that the potential risk is greater. But whether the potential risk is, in fact, greater for children is a matter of scientific debate … the FCC has never made any pronouncement that there is a greater potential risk for children, and, certainly, the FCC has not imposed different RF energy exposure limits that are applicable to children specifically … Thus, the content of the sentence – that the potential risk is indeed greater for children compared to adults – threatens to upset the balance struck by the FCC between encouraging commercial development of all phones and public safety, because the Berkeley warning as worded could materially deter sales on an assumption about safety risks which the FCC has refused to adopt or endorse.”

“ … CTIA completely ignores the fact that the speech rights at issue here are its members’ commercial speech rights …. CTIA’s members are being compelled to communicate a message, but the message being communicated is clearly the City’s message, and not that of the cell phone retailers… (providing that the notice shall state 'The City of Berkeley requires that you be provided the following notice” and that “the notice shall include the City’s logo'). In other words, while CTIA’s members are being compelled to provide a mandated disclosure of Berkeley’s speech, no one could reasonably mistake that speech as emanating from a cell phone retailer itself. Where a law requires a commercial entity engaged in commercial speech merely to permit a disclosure by the government, rather than compelling speech out of the mouth of the speaker, the First Amendment interests are less obvious. Notably, at the hearing, CTIA conceded that there would be no First Amendment violation if the City handed out flyers or had a poster board immediately outside a cell phone retailer’s store.''

“While CTIA has argued that being forced to engage in counter-speech (i.e., speech in response to the City notice) is, in and of itself, a First Amendment burden … that is not necessarily true where commercial speech is at issue.”

A case management conference has been scheduled for October 1 in the Federal District Court.

Federal District Court ruling on CTIA request for a preliminary injunction (9/21/2015):

Bron 6:
22 sept. 2015

Waarschuwingsetiket over straling bij aanschaf smartphone blijft verplicht voor retailers

Posted on 23 September 2015 by Derck Mekkering

Gisteravond ontving ik uit eerste hand per email de persoonlijke bevestiging van het raadslid van de City of Berkeley Californië USA, Maxwell Anderson, dat “the right to know ordinance” stand blijft houden. Dit ingestelde gemeentebesluit dat verkopende partijen van mobiele apparatuur verplicht additionele veiligheidsinformatie dient te verschaffen aan de koper was aangevochten door de o zo machtige CTIA, de Amerikaanse wireless association.

Oorspronkelijk zou deze wet afgelopen juni ingaan, echter door de aangespannen rechtszaak was er klaarblijkelijk een federale rechter voor nodig om deze wet alsnog in te laten gaan.

Winkeliers zijn in Berkeley verplicht de volgende waarschuwing uit te delen middels brochures of anderzijds:
“Om aan veiligheidseisen te voldoen, vereist de federale overheid dat mobiele apparatuur zoals telefoons voldoen aan richtlijnen ten aanzien van stralingsblootstelling. Indien u uw telefoon (terwijl deze verbonden is met een draadloos netwerk) in uw broekzak, borstzak of BH draagt is het mogelijk dat u federale richtlijnen voor blootstelling aan RF straling overschrijdt. Raadpleeg de handleiding van uw telefoon hoe deze veilig te gebruiken.”

Overigens weten Stralingsbewusten al langer dat in de handleiding van elke smartphone staat dat deze te allen tijde minimaal 0,5 a 1 cm van het lichaam gehouden dient te worden. Helaas dateren deze richtlijnen uit 1996 en konden ze 20 jaar geleden echt niet bedenken hoe extreem intensief wij nu met deze apparatuur omgaan..
(Zelf zien in je Apple manual? Ga naar instellingen –> algemeen –> info –> juridische informatie –> RF straling)

Rechter Edward Chen hield de voorgestelde wet in stand daar er steeds meer wetenschappelijke aanwijzingen zijn dat straling uitgezonden door mobiele telefoons wel degelijk schadelijk zijn voor de mens in bepaalde gevallen.

Een minuscule winst was er wel behaald door de CTIA. Initieel was er in deze wet opgenomen dat het risico in potentie hoger is voor kinderen. Echter zal dit bij een volgende vergadering alsnog in een bepaalde vorm worden opgenomen, zo bevestigde de advocaat van de gemeente met vertrouwen.

De gemeente Berkeley staat bekend als een grote vooruitstrevende gemeente en is in heel Amerika gerespecteerd als een gemeente die vaak de eerste is geweest in het nemen van maatregelen die positief zijn voor de burgers.

Het naastgelegen San Francisco werd in 2013 geleden succesvol overruled door dezelfde telecom industriegroep, wederom geleid door de CTIA, doordat een federale rechter deze groep in het gelijk stelde. Het is daarom een hele grote stap in de acceptatie door wetgevers dat deze wet overeind is gebleven en zal blijven, mede dankzij de steeds groter wordende consensus dat stralingsblootstelling aan mobiele apparatuur niet gezond is.

Met dit succes zal de wet medio november 2015 in gaan.

Verder nog een eerdere tekst uit de USA:
20 aug. 2015

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