Earlier this year in May, the City of Berkeley passed an ordinance mandating mobile phone retailers to make certain safety disclosures to all consumers in subsequent sales. Specifically, Berkeley wanted cell retailers to put consumers on notice that carrying a cellphone in one’s pants, shirt pocket, or tucked in one’s bra could result in exceeding federal radiation exposure guidelines.
CTIA – The Wireless Association, representing mobile phone retailers, quickly responded with a lawsuit in an attempt to put a permanent stop to Berkeley’s ordinance requiring disclosures. CTIA argued the ordinance was preempted by federal law, contending federal regulation of mobile retailer disclosures controlled over attempted state and municipal regulations. CTIA further argued that the ordinance violated mobile retailers’ right to commercial speech under the First Amendment.
In its argument, CTIA let on to the real reason it staunchly opposed the ordinance, emphasizing that requiring mobile retailers to disclose more health information would unnecessarily interfere with commercial development. In essence, CTIA argued potential harm to mobile phone sales was more important than potential health hazards to future consumers. In that light, federal district Judge Edward Chen made the right decision when he held in favor of the City of Berkeley.
Requiring Disclosure of Truthful and Helpful Information to the Public Is Not an “Obstacle” To Federal Regulation
In its argument against Berkeley’s ordinance, CTIA maintained mobile networks and retailers were already regulated by the Federal Communications Commission (FCC). The FCC already has a regulation regarding the minimum advised space one should carry their mobile phone away from their body. CTIA argued such federal regulations were appropriate because mobile networks are by nature national networks and subjecting them to state standards would “disrupt...uniformity and place additional burdens on industry and the network itself.” CTIA presses on that Berkeley’s ordinance thus creates an “obstacle” to the FCC's purpose by creating its own municipal regulation and should be considered preempted, or overridden, by existing federal law.
In response, Judge Chen accurately points out that the Berkeley ordinance does not in fact pose an obstacle to the FCC’s purpose, as the required disclosure “is consistent with the FCC’s statements and testing procedures regarding spacing.” Berkeley’s ordinance does not deviate from the FCC’s mandated regulations.
Instead, it merely advises consumers that carrying mobile phones either in their pockets or bras could potentially exceed federal guidelines. Judge Chen further noted the FCC has not objected in any way to states or cities requiring warning disclosures to consumers regarding the spacing issue. Because of this and because the ordinance does not conflict with existing FCC regulations, Judge Chen held Berkeley’s ordinance was not overridden by federal law nor did it pose a threat to national uniformity concerning mobile network regulations.
Accurate Health Disclosures Do Not Impede Commercial Speech
CTIA argued that even if Berkeley’s ordinance is not eclipsed by federal law, it should be struck down as an unconstitutional violation of CTIA members’ right to commercial speech. Under this argument, CTIA maintained that Berkeley must give a substantial government interest or else it must be struck down as unconstitutional.
However, Judge Chen was quick to clarify that the issue at hand was not regarding commercial speech, but rather compelled disclosure of commercial speech, which the Supreme Court has historically treated differently. The Supreme Court has held that compelled disclosure of commercial speech, unlike suppression or restriction of such speech, only requires the State to show any conceivable government interest related to the regulation.
Such a low standard applied this case would mean Berkeley only had to show one possible government interest related to the ordinance in order for it to pass as constitutional. Berkeley met that minimum requirement easily with its ordinance, which was put in to place for the purpose of enhancing public health and safety. Thus, applying past Supreme Court holdings, Judge Chen correctly upheld Berkeley’s ordinance as constitutional.
Authored by Sarah Lee, LegalMatch Legal Writer