John Diaz:
Federal judge upholds Berkeley law that requires cellphone retailers to inform customers of ways to reduce their radiation exposure.
No one appreciates the significance of a federal judge’s ruling in favor of Berkeley’s cell-phone-warning law more than Ellie Marks. The 63-year-old San Francisco woman has been on a crusade to warn consumers of the possible health effects of radiofrequency exposure ever since her husband, Alan, was diagnosed with brain cancer after suffering a seizure in May 2008.
Marks was convinced that her realtor husband’s constant use of a cell phone nearly killed him — and that the public would benefit from a forthright warning about the danger of keeping a switched-on phone against one’s body.
She could not have taken on a more formidable adversary than CTIA-The Wireless Association. It spared no expense to hire the best lawyers and lobbyists it could find to deter or defeat state and local proposals to require more prominent warnings than federally mandated notices buried in tiny type deep inside user manuals. San Francisco passed such a “Right to Know” ordinance, but ultimately surrendered in 2013 after a costly three-year legal fight.
Berkeley has stood firm — and redemption arrived Monday for Marks and others who have been carrying the cause.
U.S. District Judge Edward Chen, citing Federal Communications Commission research, upheld the city ordinance to require sellers to inform customers that keeping a device in a pocket or bra could lead to radiation exposure that exceeds federal guidelines. Chen concluded there was “a reasonable scientific basis” to believe that such emissions “at some levels can and do present health risks.” The judge, however, disallowed a warning that children could be at greater risk, noting that it remained a “matter of scientific debate.”
The rarity and implications of the victory are profound.
“Oh my gosh,” said Marks. “It is so gratifying because we’re up against a huge industry with so much money. They don’t really want to admit there’s a problem with cell phones against the head and body, and they seem to own some politicians and — I hate to say this — sometimes the media, too.
“It’s like David and Goliath. We’re thrilled.”
In this case, Goliath was represented by attorney Theodore Olson, the former U.S. solicitor general who was a legal mastermind for George W. Bush in the fight over Florida in the 2000 presidential election, and for the challenge to California’s Proposition 8 ban on same-sex marriage.
The industry’s argument has been that such warnings violate the manufacturers’ First Amendment rights by forcing them to state something they do not believe. After the ruling, Olson issued a statement asserting that “the overwhelming weight of scientific evidence refutes Berkeley’s ill-informed and misleading mandatory warnings about cell phones.”
If the judge’s ruling holds up to anticipated appeals, Berkeley could provide a template for disclosure for elected officials across the nation who have been intimidated by the industry.
“That ruling was fabulous,” said Marks. “It was a game changer.”
Marks has seen the timidity in action in Sacramento. She was a familiar figure in the State Capitol during three years of futility in trying to get a disclosure-bill passed.
“She is an astounding individual,” said state Sen. Mark Leno, D-San Francisco, who carried the legislation. “She is so well meaning and with a singular agenda — and it’s only for the health and well being of others so they don’t have to go through what she went through.”
How strong was the lobbying against a state right-to-know law?
Leno’s initial bill in 2010 would have required a warning about radiation exposure at the point of sale, either online or at a retailer. It mustered just nine yes votes in an 40-member state Senate.
He came back the next year with a measure to require posting of the manufacturers’ own language (from user manuals) at point of purchase. “They didn’t like that any better,” he said. Defeated.
The third year he proposed merely that they post the warning online. “They wouldn’t have that either,” he said. Defeated yet again.
“No one is suggesting we don’t use this product,” Leno said. “I have two of them; I couldn’t live without them.”
The point that Marks, Leno and others have tried to drive home is that how a phone is used has an effect on radiation exposure — which, as Judge Chen noted, could pose a health risk.
“I feel it’s worse than tobacco,” said Marks, “We have young children using cell phones, and we have teenagers who sleep with them underneath their pillows so they don’t miss a text and carry them in their pockets, and a lot of young women who keep them in their bras.”
At the very least, Americans should have the chance to make an informed choice on whether they want to assume that elevated risk.
“This is,” said Leno, “perhaps the biggest health experiment the planet has ever seen.”
“The fact that an industry is being challenged like this is great in America right now. Too many corporations are running our society.” Ellie Marks