Cellphone Ordinance Puts Berkeley at Forefront of Radiation Debate
By CAROL POGASHJULY 21, 2015
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BERKELEY, Calif. — Leave it to Berkeley: This city,
which has led the nation in passing all manner of laws favored by the left, has
done it again. This time, the city passed a measure — not actually backed by
science — requiring cellphone stores to warn customers that the products could
be hazardous to their health, presumably by emitting dangerous levels of cancer-causing
radiation.
Under the so-called Right to Know ordinance, passed
unanimously in May by the Berkeley City Council, retailers are supposed to
notify customers, starting in August, that “you may exceed the federal
guidelines for exposure” to radio frequency radiation by carrying a cellphone
in a pants or shirt pocket or tucked into a bra. “The potential risk,” the
warning continues, “is greater for children.”
Even supporters of the ordinance acknowledge that
there is no definitive scientific link between cellphones and cancer,
although they argue that it may take years for cancers to develop. The American
Cancer Society says that cases of people developing cancer after carrying
cellphones may
be coincidental or anecdotal. But some supporters are undeterred, noting
that there are similar warnings in the fine print of cellphone manuals, and
that the Berkeley warning is carefully written to reflect that language, albeit
with additional cautionary words.
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“We want to raise awareness,” said Ellie Marks, the
founder of the California Brain
Tumor Association. Ms. Marks does not live in Berkeley but brought her
case here because, she said, “Berkeley has a reputation for taking progressive
action.” She said she was convinced that her husband, Alan, a real estate
agent, contracted brain cancer at age 56 from often having a cellphone pressed
to his ear.
Not surprisingly, the cellphone industry is not
allowing such insinuations to go unchallenged. A few weeks after the law
passed, CTIA-The Wireless Association,
a trade group, filed a First Amendment lawsuit against Berkeley, charging that
retailers cannot be forced to say something that is “false.” A hearing is set
for Aug. 6 in federal court in San Francisco, and the ordinance will not go
into effect until the matter is settled.
Theodore B. Olson, a lawyer with the firm of Gibson,
Dunn & Crutcher who was solicitor general under President George W.
Bush, represents CTIA (formerly known as the Cellular Telephone Industries
Association) and said in an email that the Berkeley ordinance was “alarmist”
and “violates the most fundamental principles of the First Amendment.”
In its lawsuit, the trade group said there was no
safety concern “no matter how the phone is worn.”
Many doctors and scientists tend to agree. “X-rays,
which emit ionizing radiation, are known to cause adverse biological effects at
high doses, including cancer,” said Jerrold T. Bushberg, a medical physicist
and a professor of radiology and radiation oncology at the University of
California, Davis. Cellphones, which emit non-ionizing radiation, do not, he
said.
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Speaking for himself and as a representative of the
American Association of Physicists in Medicine, Dr. Bushberg said possible
connections between cellphones and cancer have been studied exhaustively.
“We’ve been looking for signs of adverse effects at
low levels for over 50 years without success,” he said. “We can’t say it’s
impossible, but if there is a risk it would be very, very low, or we would have
seen an increase in brain cancers.”
If cellphones were carcinogenic, Dr. Bushberg said,
researchers would have seen an increase in brain “We can’t say it’s
impossible, but if there is a risk it would be very, very low, or we would have
seen an increase in brain cancers.”
If cellphones were carcinogenic, Dr. Bushberg said, researchers
would have seen an increase in brain cancer in Scandinavian countries, where
they have been used longer and where, because of socialized medicine, excellent
cancer registries exist. That has not happened, he said.
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At the heart of the debate is “simply one word:
radiation,” said Robert Cahn, a senior scientist at the Lawrence Berkeley
National Laboratory. “Just because cellphones emit radiation doesn’t make them
dangerous.”
Other devices that emit low-energy radio frequency
radiation and that have not proved harmful include baby monitors, garage door
openers, wireless routers and smart meters.
Nevertheless, Berkeley has a habit of passing
first-in-the-nation laws that seem radical but are promptly copied by other
municipalities including creating smoking bans, a sanctuary for immigrants in
the country illegally, a Styrofoam ban and health benefits for domestic
partners. So if Berkeley succeeds in its fight to warn people about cellphones,
can Cambridge, Mass., and other cities be far behind?
“If you can get it passed in Berkeley, you have a
beginning,” said Susan Wengraf, a City Council member. “If you can’t, forget
it, or come back three years later.”
On the streets of Berkeley, reviews for the ordinance
were mixed. “Labeling things that have a potential threat is always good,” said
Benjamin Fahrer, a farmer who said he creates “urban agriculture on rooftops.”
He likened the new law to notifying the public on secondhand smoke and genetically
modified foods.
Bill Doran, an engineer from Pasadena who had his
cellphone out while in line for ice cream, said, “I’m a little skeptical about
cellphones causing harm.” He was more concerned “that I’m not able to get
reception here.”
At a phone store here, Calico Rose said the law would
not change the way she carried her phone. She demonstrated by tucking her
cellphone in her wallet, which she pressed into her bra. “It would probably
take substantial use to cause cancer,” she said.
Nevertheless, a Berkeley City Council member who
helped write the legislation, Max Anderson, said he had appealed to his
colleagues in May to pass the ordinance on ethical grounds. “Even if the
science isn’t firm, if there’s a risk, we should proceed with caution,” he
said.
Lawrence Lessig, a professor at Harvard Law School,
and Robert Post, the dean of Yale Law School and an expert on the First
Amendment, have agreed to defend Berkeley pro bono over claims that the
legislation is unconstitutional. “The First Amendment is being contorted to all
sorts of wrong ends,” Mr. Lessig said.
“We’re not intending to challenge the science of
cellphones,” Mr. Lessig said. “We’re just making people aware of existing
regulations.”
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