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SF cellphone warning law zapped by federal judge

A federal judge Thursday said parts of San Francisco’s landmark law requiring retailers to warn customers about cellphone radiation were misleading and infringed on businesses’ constitutional rights, but he did not strike the law down outright.

Judge William Alsup granted in part a motion by an industry group, CTIA – The Wireless Association, to delay implementation of San Francisco’s “Right to Know” law, which requires local cell phone retailers to inform customers about the potential health risks of radio-frequency radiation from the phones.

The law, passed last year, had required retailers to disclose the phones’ radiation levels, but was later amended to require only that they provide customers with city-produced fact sheets, as well as wall posters and stickers warning about potential health issues and how to reduce exposure. It was set to go into effect this month.

In a written ruling, Alsup noted that the Federal Communications Commission has never said radio-frequency radiation poses no danger, and that the World Health Organization has classified it as a “possible carcinogen.”

“It cannot be said that San Francisco has acted irrationally in finding a potential public health risk and in requiring disclosures to mitigate that potential risk,” Alsup said.

Though Alsup didn’t throw out the law, he narrowed its scope even further.

The fact sheet designed by San Francisco will have to be revised if the law is to go forward. Alsup said its overall message is “misleading by omission,” Alsup said, in that it leaves the impression that cell phones are dangerous and have “somehow escaped the regulatory process.”

Further, the sheet’s “possible carcinogen” reference does not mention that the category falls short of the WHO’s “carcinogenic” and “probably carcinogenic” groupings, Alsup said.

Other “possible” carcinogens listed by the WHO include coffee and picked vegetables, he noted.

Graphics showing human silhouettes being irradiated with red and yellow circles into the head, hip and groin were “too much opinion and too little fact,” and must be deleted, he said.

The posters “would unduly intrude on the retailers’ wall space” and the stickers, designed to be affixed to promotional materials, would cover the retailers’ own messages, both in violation of the First Amendment, Alsup ruled.

City Attorney Dennis Herrera and CTIA both issued statements Thursday indicating that each side would likely challenge parts of Alsup’s ruling in a federal appeals court.

aburack@sfexaminer.com

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