City’s warn­ing on cell­phone dan­ger may go too far

Los Angeles Times - - BUSINESS - DAVID LAZARUS

It’s a ques­tion that just won’t go away: Do cell­phones give you can­cer?

The city of Berke­ley has passed an or­di­nance that, be­gin­ning next month, would make it the first mu­nic­i­pal­ity in the coun­try to re­quire that cell­phone re­tail­ers warn cus­tomers that mo­bile de­vices may emit can­cer­caus­ing ra­di­a­tion.

The wire­less in­dus­try’s trade group re­sponded last week with a fed­eral law­suit claim­ing that its 1st Amend­ment rights were be­ing vi­o­lated by be­ing forced to dis­sem­i­nate an opin­ion that it says is false.

CTIA — the Wire­less Assn. said in its com­plaint that Berke­ley’s warn­ing is “mis­lead­ing, con­tro­ver­sial and gov­ern­ment- crafted” and will “stoke fear in con- sumers about the dan­gers of cell­phones.”

Here’s the thing: Both sides are right.

Berke­ley of­fi­cials are cor­rect in say­ing that ra­di­a­tion from cell­phones may pose a risk of can­cer to the brain and other or­gans be­cause of their prox­im­ity to the body.

No less an au­thor­ity than the World Health Or­ga­ni­za­tion has con­cluded that “the elec­tro­mag­netic fields pro­duced by mo­bile phones are … pos­si­bly car­cino­genic to hu­mans.”

But WHO, like al­most ev­ery other sci­en­tific body that’s stud­ied the ques­tion, ac­knowl­edges that noth­ing is known for sure.

As the Mayo Clinic puts it: “For now, no one knows if cell­phones are ca­pa­ble of caus­ing can­cer. Although long- term stud­ies are on­go­ing, to date there’s no con­vinc­ing ev­i­dence that cell­phone use in­creases the risk of can­cer.”

Con­sid­er­ing that 90% of

U. S. adults own a cell­phone, ac­cord­ing to the Pew Re­search Cen­ter, the ques­tion of pos­si­ble health dan­gers isn’t a triv­ial one.

But I think the wire­less in­dus­try’s po­si­tion in this case is stronger than Berke­ley’s.

Lots of things may harm you. Do we re­ally want to go through life be­ing con­stantly bom­barded by warn­ings of pos­si­ble dan­ger, es­pe­cially when there’s no de­fin­i­tive science on the mat­ter?

Cig­a­rettes can kill you. There’s no dis­put­ing that fact. It seems per­fectly rea­son­able that cig­a­rette pack­ages in­clude health warn­ings.

But should ev­ery con­tainer of French fries in­clude a warn­ing that they could lead to heart dis­ease or di­a­betes? Should sneak­ers in­clude a warn­ing that go­ing for long runs could dam­age your knees and hips?

David Stewart, a pro­fes­sor of mar­ket­ing at Loy­ola Mary­mount Univer­sity who spe­cial­izes in warn­ing la­bels, said mod­er­a­tion is needed when it comes to in­form­ing the public about health haz­ards.

“If ev­ery­thing is dan­ger­ous, then noth­ing is dan­ger­ous,” he said. “There has to be ev­i­dence that a dan­ger is real.”

Stewart said his re­search has shown that the more warn­ings con­sumers en­counter, the less ef­fec­tive each warn­ing be­comes in com­mu­ni­cat­ing a risk. At some point, he said, peo­ple just start ig­nor­ing them.

“Do we re­ally want to dis­cour­age peo­ple from us­ing their cell­phones?” Stewart said. “We do when they’re driv­ing, but what do we hope to ac­com­plish by warn­ing about a spec­u­la­tive risk?”

Dr. Joel Moskowitz, a re­searcher at UC Berke­ley’s School of Public Health who has stud­ied cell­phone ra­di­a­tion, coun­tered that the can­cer risk of wire­less de­vices is more than spec­u­la­tive.

“I’d say it’s a prob­a­ble risk,” he said, though he ac­knowl­edged that stud­ies have yet to pro­duce ir­refutable ev­i­dence that cell­phones cause can­cer. Mos- kowitz has served as a sci­en­tific ad­vi­sor to Berke­ley of­fi­cials.

Ra­di­a­tion tests con­ducted by the Fed­eral Com­mu­ni­ca­tions Com­mis­sion use liq­uid- filled dum­mies “to sim­u­late the way dif­fer­ent users’ typ­i­cally hold a cell­phone, in­clud­ing to each side of the head.” The FCC sets emis­sion stan­dards based on these tests.

The Berke­ley City Coun­cil voted unan­i­mously in May to re­quire that cell­phone re­tail­ers post signs and hand out no­tices stat­ing that “the fed­eral gov­ern­ment re­quires that cell­phones meet ra­dio fre­quency 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,” it says.

“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.”

While that might sound like straight­for­ward, com­mon- sense ad­vice, the wire­less in­dus­try says it goes too far.

CTIA de­clined to dis­cuss the mat­ter with me. But it of­fered a state­ment from its high- pro­file lawyer for the case, Ted Ol­son.

“Berke­ley’s or­di­nance plainly vi­o­lates the 1st Amend­ment,” Ol­son said. “It is un­con­sti­tu­tional to force cell­phone re­tail­ers to com­mu­ni­cate false, mis­lead­ing and inf lam­ma­tory in­for­ma­tion about their prod­ucts.”

San Fran­cisco tried a sim­i­lar warn­ing in 2010 about the po­ten­tial dan­ger of cell­phones. But the city’s Board of Su­per­vi­sors dropped the idea af­ter the wire­less in­dus­try mounted a le­gal chal­lenge al­most iden­ti­cal to its at­tack on the Berke­ley or­di­nance.

Moskowitz said Berke­ley of­fi­cials learned from San Fran­cisco’s ex­pe­ri­ence. Berke­ley’s warn­ing has been worded care­fully to ad­dress le­gal con­cerns, he said.

A key dif­fer­ence: San Fran­cisco’s statute said cell­phone ra­di­a­tion poses a can­cer risk. Berke­ley’s says that ra­di­a­tion ex­po­sure from car­ry­ing a cell­phone may ex­ceed fed­eral guide­lines. It makes no ref­er­ence to can­cer.

Caro­line Mala Corbin, a law pro­fes­sor at the Univer­sity of Mi­ami spe­cial­iz­ing in 1st Amend­ment is­sues, said there are two el­e­ments to dis­clo­sure cases.

First, is the re­quired dis­clo­sure fac­tual? That is, does avail­able ev­i­dence sup­port the in­for­ma­tion be­ing con­veyed?

Sec­ond, does the warn­ing re­flect an ide­o­log­i­cal bias? If so, Corbin said, it could be deemed un­con­sti­tu­tional be­cause it com­pels peo­ple to say ques­tion­able things they might dis­agree with.

She cited a North Carolina law that re­quired doc­tors to per­form an ul­tra­sound on any woman seek­ing an abor­tion, dis­play the sono­gram on a screen and de­scribe the fe­tus to the woman. The law said doc­tors must dis­play and de­scribe the im­age even if the woman averted her eyes or tried not to lis­ten.

The U. S. Supreme Court this month let stand a lower court rul­ing that such com­pelled speech clearly ref lected law­mak­ers’ ide­o­log­i­cal be­liefs and, there­fore, vi­o­lated doc­tors’ 1st Amend­ment rights.

In the Berke­ley case, Corbin said: “If the court thinks this is fac­tual in­for­ma­tion that’s help­ful to con­sumers, it could be fine. But if it thinks the city is ex­press­ing an ide­o­log­i­cal opin­ion, it could rule against the or­di­nance.”

I re­spect Berke­ley’s de­sire to safe­guard con­sumers from po­ten­tial harm. I, too, have won­dered if hav­ing a ra­di­a­tion- emit­ting de­vice on my body all day long is a good idea.

But un­til the sci­en­tific com­mu­nity can ad­dress the can­cer risk of cell­phones more de­ci­sively, it seems the city may be over­reach­ing.

For now.

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