Court blocks S.F. warning on cell phones

FEDERAL COURT Ordinance had been delayed by industry suit

Bob Egelko

Updated 9:03 p.m., Monday, September 10, 2012

A federal appeals court blocked San Francisco on Monday from requiring cell phone dealers to tell customers the products may expose them to dangerous levels of radiation, saying the city can't force retailers to pass along messages they dispute.

The ordinance, the first of its kind in the nation, had been scheduled to take effect last October, but has remained on hold during an industry challenge.

It would require retailers to give each cell phone buyer a fact sheet saying the World Health Organization had classified the phones' radio-frequency emissions as a "possible carcinogen."

The sheet also shows human silhouettes absorbing radiation and suggests protective measures, like wearing headsets, making shorter calls and limiting use by children. Stores would have to put similar messages on large wall posters and on stickers attached to display ads.

The U.S. Supreme Court has ruled that the government can require businesses to display factual, undisputed information about their products.

Applying that standard, U.S. District Judge William Alsup ruled last year that parts of San Francisco's ordinance went too far, conveying what he called a misleading message that cell phones are dangerous. He told the city to delete the silhouettes and modify its fact sheet, but said it could still compel retailers to disclose undisputed facts about a "plausible public health threat."

Both sides appealed. On Monday, the Ninth U.S. Circuit Court of Appeals in San Francisco barred enforcement of the entire ordinance while the case continues.

The city's fact sheet, even in the scaled-back version approved by Alsup, "contains more than just facts," the court said in a 3-0 ruling.

Consumers could interpret the list of protective measures as "expressing San Francisco's opinion that using cell phones is dangerous," the court said. That view is debatable, the court said, citing the Federal Communications Commission's findings that the phones are safe when radiation emissions are within the agency's approved limits.

The ordinance requires retailers to pass along, and implicitly endorse, "statements that are even more misleading and controversial than the revised fact sheet," the court said. The ruling was issued by Judges Mary Schroeder and Consuelo Callahan and U.S. District Judge Edward Korman of New York, temporarily assigned to the court.

The city's lawyers and policymakers will review the ruling before deciding their next steps, said Matt Dorsey, spokesman for City Attorney Dennis Herrera. There was no comment from CTIA-The Wireless Association, the trade group that filed the suit.

Bob Egelko is a San Francisco Chronicle staff writer. E-mail: begelko@sfchronicle.com

Read more: http://www.sfgate.com/bayarea/article/Court-blocks-S-F-warning-on-cell-phones-3854826.php#ixzz26fFlJ0X8