Settlement proposal would drop San Francisco’s bid to label cellphone dangers

Although it’s far from clear whether cellphones cause cancer, a first-of-its-kind San Francisco law requiring phone merchants to disclose mobile devices’ possible health risks has caused The City no shortage of headaches.

The 2½ years of legal wrangling over the Cell Phone Right to Know Act would end under a proposed settlement that would see the law overturned but also would not stick taxpayers with the attorney fees of cellphone industry lobbyists, believed to be in the six figures, according to court documents.

The law was introduced by then-Mayor Gavin Newsom and approved by the Board of Supervisors in 2010. It required disclosure of the radiation emitted by cellphones — the specific absorption rate, or SAR — and provided customers with a Department of the Environment-created fact sheet along with each newly purchased device.

The fact sheets warned phone users to keep devices away from the brain and reproductive organs, and advocated for headset use. Posters detailing the potential health risks would have been prominently displayed in stores, and warning stickers would accompany phones.

The law was scheduled to go into effect in October 2011, but almost immediately after its passage, a cellphone industry group called CTIA-The Wireless Association sued.

The July 2010 lawsuit alleged that the cellphone disclosure requirements violated federal law, including merchants’ First Amendment rights to not provide information with which they disagreed.  

A federal district judge upheld a modified version of the law that eliminated the SAR warnings and focused on the fact sheets, but the entire law was struck down by a federal appeals court in September 2012. According to the court, the fact sheet expressed The City’s “opinion,” not indisputably proved by science, that cellphones are dangerous.

The City and CTIA would have gone back to trial in February 2014. But attorneys hashed out the settlement agreement, which would see the law thrown out and litigation end.

Because it does not leave The City on the hook for CTIA’s legal bills, the settlement might be San Francisco’s best move, according to City Attorney’s Office spokesman Matt Dorsey.

“Without getting into details about this particular case, these kinds of constitutional challenges to local ordinances can run up fees in the mid- to high six figures,” Dorsey said Tuesday.

A spokesman for the Washington, D.C.-based CTIA said the group had no comment. San Francisco-based attorney Robert Allan Mittelstaedt, one of the lead attorneys for the association, did not respond to a request for comment.

The settlement still must be approved by the Board of Supervisors. A committee is expected to consider the settlement in a closed session this week.

The radiation warnings were part of a series of laws that attracted undue nationwide attention to San Francisco. An abandoned bid to regulate Happy Meal toys became fodder for Fox News and was seen as an overbearing nanny-state law.

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