FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CTIA - THE WIRELESS

ASSOCIATION,

Plaintiff-Appellant,

v.

CITY OF BERKELEY, California;

CHRISTINE DANIEL, City

Manager of Berkeley,

California, in her official

capacity,

Defendants-Appellees.

No. 16-15141

D.C. No.

3:15-cv-02529-EMC

OPINION

Appeal from the United States District Court

for the Northern District of California

Edward M. Chen, District Judge, Presiding

Argued and Submitted September 13, 2016

San Francisco, California

Filed April 21, 2017

Before: William A. Fletcher, Morgan B. Christen,

and Michelle T. Friedland, Circuit Judges.

Opinion by Judge W. Fletcher;

Dissent by Judge Friedland
2 CTIA V. CITY OF BERKELEY

SUMMARY*

First Amendment/Preemption

The panel affirmed the district court’s order denying a

request for a preliminary injunction seeking to stay

enforcement of a City of Berkeley ordinance requiring cell

phone retailers to inform prospective cell phone purchasers

that carrying a cell phone in certain ways may cause them to

exceed Federal Communications Commission guidelines for

exposure to radio-frequency radiation.

Applying Zauderer v. Office of Disciplinary Counsel of

the Supreme Court of Ohio, 471 U.S. 626 (1985), the panel

held that the City’s compelled disclosure of commercial

speech complied with the First Amendment because the

information in the disclosure was reasonably related to a

substantial governmental interest and was purely factual. 

Accordingly, the panel concluded that plaintiff had little

likelihood of success on its First Amendment claim that the

disclosure compelled by the Berkeley ordinance was

unconstitutional. 

The panel determined that there was little likelihood of

success on plaintiff’s contention that the Berkeley ordinance

was preempted. The panel held that Berkeley’s compelled

disclosure did no more than alert consumers to the safety

disclosures that the Federal Communication Commission

requires, and to direct consumers to federally compelled

instructions in their user manuals providing specific

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
CTIA V. CITY OF BERKELEY 3

information about how to avoid excessive exposure. The

panel held that far from conflicting with federal law and

policy, the Berkeley ordinance complements and reinforces

it. 

In affirming the denial of a preliminary injunction, the

panel further determined that there was no irreparable harm

based on the First Amendment or preemption, that the

balance of equities tipped in Berkeley’s favor, that the

ordinance was in the public interest, and that an injunction

would harm that interest. 

Dissenting in part, Judge Friedland stated that Berkeley’s

ordinance likely violates the First Amendment and therefore

should have been preliminarily enjoined. She stated that

taken as a whole, the most natural reading of the Berkeley

disclosure warns that carrying a cell phone in one’s pocket is

unsafe. Yet Berkeley had not attempted to argue, let alone to

prove, that message was true.

COUNSEL

Theodore B. Olson (argued), Helgi C. Walker, Michael R.

Huston, and Jacob T. Spencer, Gibson Dunn &Crutcher LLP,

Washington, D.C.; Joshua S. Lipshutz and Joshua D. Dick,

Gibson Dunn & Crutcher LLP, San Francisco, California; for

Plaintiff-Appellant.

Lester Lawrence Lessig, III (argued), Cambridge,

Massachusetts; Amana Shanor, New Haven, Connecticut;

Savith Iyengar, Deputy City Attorney; Zach Cowan, City

Attorney; Berkeley City Attorney’s Office, Berkeley,

California; for Defendants-Appellants.
4 CTIA V. CITY OF BERKELEY

Robert Corn-Revere and Ronald G. London, Davis Wright

Tremaine LLP, Washington, D.C., for Amicus Curiae The

Association of National Advertisers, Inc.

Selena Kyle, Chicago, Illinois; Aaron Colangelo,

Washington, D.C.; as and for Amicus Curiae Natural

Resources Defense Council.

R. Matthew Wise, Deputy Attorney General; Mark R.

Beckington, Supervising Deputy Attorney General; Douglas

J. Woods, Senior Assistant Attorney General; Kathleen A.

Kenealy, Chief Assistant Attorney General; Sacramento,

California; as and for Amicus Curiae Attorney General of

California.

OPINION

W. FLETCHER, Circuit Judge:

A City of Berkeley ordinance requires cell phone retailers

to inform prospective cell phone purchasers that carrying a

cell phone in certain ways may cause them to exceed Federal

Communications Commission guidelines for exposure to

radio-frequency radiation. CTIA, a trade association

formerly known as Cellular Telephone Industries

Association, challenges the ordinance on two grounds. First,

it argues that the ordinance violates the First Amendment. 

Second, it argues that the ordinance is preempted.

CTIA requested a preliminary injunction staying

enforcement of the ordinance. The district court denied

CTIA’s request, and CTIA filed an interlocutory appeal. We

affirm and remand for further proceedings.
CTIA V. CITY OF BERKELEY 5

I. Factual and Procedural Background

In May 2015, the City of Berkeley passed an ordinance

requiring cell phone retailers to disclose information to

prospective cell phone purchasers about the federal

government’s radio-frequency radiation exposure guidelines

relevant to cell phone use. Under “Findings and Purpose,”

the ordinance provided:

A. Requirements for the testing of cell

phones were established by the federal

government in 1996.

B. These requirements established “Specific

Absorption Rates” (SAR) for cell phones.

C. The protocols for testing the SAR for cell

phones carried on a person’s body assumed

that they would be carried a small distance

away from the body, e.g., in a holster or belt

clip, which was the common practice at that

time. Testing of cell phones under these

protocols has generally been conducted based

on an assumed separation of 10–15

millimeters.

D. To protect the safety of their consumers,

manufacturers recommend that their cell

phones be carried away from the body, or be

used in conjunction with hands-free devices.

E. Consumers are not generally aware of

these safety recommendations.
6 CTIA V. CITY OF BERKELEY

F. Currently, it is much more common for

cell phones to be carried in pockets or other

locations rather than holsters or belt clips,

resulting in much smaller separation distances

than the safety recommendations specify.

G. Some consumers may change their

behavior to better protect themselves and their

children if they were aware of these safety

recommendations.

H. While the disclosures and warnings that

accompany cell phones generally advise

consumers not to wear them against their

bodies, e.g., in pockets, waistbands, etc., these

disclosures and warnings are often buried in

fine print, are not written in easily understood

language, or are accessible only by looking

for the information on the device itself.

I. The purpose of this Chapter is to assure

that consumers have the information they

need to make their own choices about the

extent and nature of their exposure to radiofrequency radiation.

Berkeley Mun. Code § 9.96.010 (2015).

CTIA challenged the compelled disclosure provision of

the ordinance, arguing that it violated the First Amendment

and was preempted. One sentence of the compelled

disclosure stated, “The potential risk is greater for children.” 

The district court held that this sentence was preempted, and

it issued a preliminary injunction against enforcement of the
CTIA V. CITY OF BERKELEY 7

ordinance. In December 2015, Berkeley re-passed the

ordinance without the offending sentence. In its current form,

the compelled disclosure provision provides:

A. A Cell phone retailer shall provide to

each customer who buys or leases a Cell

phone a notice containing the following

language:

The City of Berkeley requires that you be

provided the following notice:

To assure safety, the Federal Government

requires that cell phones meet radiofrequency (RF) exposure guidelines. If

you carry or use your phone in a pants or

shirt pocket or tucked into a bra when the

phone is ON and connected to a wireless

network, you may exceed the federal

guidelines for exposure to RF radiation. 

Refer to the instructions in your phone or

user manual for information about how to

use your phone safely.

Berkeley Mun. Code § 9.96.030(A) (2015).

The ordinance requires that the compelled disclosure be

provided either on a prominently displayed poster no less

than 81⁄2 by 11 inches with no smaller than 28-point font, or

on a handout no less than 5 by 8 inches with no smaller than

18-point font. The logo of the City of Berkeley must be

placed on the poster and handout. The ordinance provides

that a cell phone retailer may include additional information

on the poster or handout if it is clear that the additional
8 CTIA V. CITY OF BERKELEY

information is not part of the compelled disclosure. 

§ 9.96.030(B) (“The paper on which the notice is printed may

contain other information in the discretion of the Cell phone

retailer, as long as that information is distinct from the notice

language required by subdivision (A) of this Section.”).

CTIA challenged the current ordinance, arguing, as it had

before, that the ordinance violates the First Amendment and

is preempted. The district court noted that the preempted

sentence had been removed from the ordinance, dissolved its

previously entered injunction, and denied CTIA’s request for

a new preliminary injunction. CTIA filed an interlocutory

appeal.

II. Jurisdiction and Standard of Review

We have jurisdiction under 28 U.S.C. § 1292. We review

a denial of a preliminary injunction for abuse of discretion.

Inst. of Cetacean Research v. Sea Shepherd Conservation

Soc’y, 725 F.3d 940, 944 (9th Cir. 2013). “An abuse of

discretion occurs when the district court based its ruling on an

erroneous view of the law or on a clearly erroneous

assessment of the evidence.” Friends of the Wild Swan v.

Weber, 767 F.3d 936, 942 (9th Cir. 2014) (citation and

internal quotation marks omitted). We will not reverse the

district court where it “got the law right,” even if we “would

have arrived at a different result,” so long as the district court

did not clearly err in its factual determinations. Lands

Council v. McNair, 537 F.3d 981, 987 (9th Cir. 2008) (en

banc).
CTIA V. CITY OF BERKELEY 9

III. Regulatory Background

The Federal Communications Commission (“FCC”) has

regulatory jurisdiction over transmitting services in the

United States. In 1996, after extensive consultation with

other agencies, the FCC issued a rule designed to limit the

Specific Absorption Rate (“SAR”) of radio-frequency(“RF”)

radiation from FCC-regulated transmitters, including cell

phones:

1. By this action, we are amending our

rules to adopt new guidelines and methods for

evaluating the environmental effects of radiofrequency (RF)radiation from FCC-regulated

transmitters. We are adopting Maximum

Permissible Exposure (MPE) limits for

electric and magnetic field strength and power

density for transmitters operating at

frequencies from 300 kHz to 100 GHz . . . We

are also adopting limits for localized

(“partial body”) absorption that will apply to

certain portable transmitting devices . . . We

believe that the guidelines we are adopting

will protect the public and workers from

exposure to potentially harmful RF fields.

2. In reaching our decision on the adoption

of new RF exposure guidelines we have

carefully considered the large number of

comments submitted in this proceeding, and

particularly those submitted by the U.S.

Environmental Protection Agency (EPA), the

Food and Drug Administration (FDA) and

other federal health and safety agencies. The
10 CTIA V. CITY OF BERKELEY

new guidelines we are adopting are based

substantiallyon the recommendations of those

agencies, and we believe that these guidelines

represent a consensus view of the federal

agencies responsible for matters relating to

the public safety and health.

In re Guidelines for Evaluating the Environmental Effects of

Radio-frequency Radiation, 61 Fed. Reg. 41006, 41006–07

(Aug. 7, 1996) (emphases added).

Out of concern for the safety of cell phone users, the FCC

rejected an industry proposal to exclude “low-power devices”

such as cell phones from the rule adopting SAR limits:

Most commenting parties, including Federal

health and safety agencies, support the use of

theANSI/IEEE [American National Standards

Institute/ Institute of Electrical and Electronic

Engineers] SAR limits for localized (partial

body) exposure for evaluating low-power

devices designed to be used in the immediate

vicinity of the body. . . . Therefore, in view

of the consensus and the scientific support in

the record, we are adopting the SAR limits for

the determination of safe exposure from lowpower devices designed to be used in the

immediate vicinity of the body based upon the

1992 ANSI/IEEE guidelines. . . .

The SAR limits we are adopting will

generally apply to portable devices . . . that

are designed to be used with any part of the

radiating structure of the device in direct
CTIA V. CITY OF BERKELEY 11

contact with the body of the user or within

20 cm of the body under normal conditions of

use. For example, this definition would apply

to hand-held cellular telephones. . . .

In re Guidelines for Evaluating the Environmental Effects of

Radio-frequency Radiation (“FCC Guidelines for RadiofrequencyRadiation”), FCC 96-326, ¶¶ 62–63(Aug. 1, 1996)

(emphases added).

The FCC has a better-safe-than-sorry policy with respect

to SAR limits:

. . . The intent of our exposure limits is to

provide a cap that both protects the public

based on scientific consensus and allows for

efficient and practical implementation of

wireless services. The present Commission

exposure limit is a “bright-line rule.” That is,

so long as exposure levels are below a

specified limit value, there is no requirement

to further reduce exposure. . . . Our current RF

exposure guidelines are an example of such

regulation, including a significant “safety”

factor, whereby the exposure limits are set at

a level on the order of 50 times below the

level at which adverse biological effects have

been observed in laboratory animals as a

result of tissue heating resulting from RF

exposure.

In re Reassessment of FCC Radiofrequency Exposure Limits

and Policies, 28 FCC Rcd. 3498, 3582 (Mar. 29, 2013). The

FCC recognizes that its required margin of safety is large:
12 CTIA V. CITY OF BERKELEY

. . . [E]xceeding the SAR limit does not

necessarily imply unsafe operation, nor do

lower SAR quantities imply “safer” operation. 

The limits were set with a large safety factor,

to be well below a threshold for unacceptable

rises in tissue temperature. As a result,

exposure well above the specified SAR limit

should not create an unsafe condition. . . . In

sum, using a device against the body without

a spacer will generally result in actual SAR

below the maximum SAR tested; moreover, a

use that possibly results in non-compliance

with the SAR limit should not be viewed with

significantly greater concern than compliant

use.

Id. at 3588 (emphasis added).

There are two ways to ensure compliance with SAR

limits—reducing the amount of RF radiation from a

transmitting device, and increasing the distance between the

device and the user. Different low-power devices emit

different amounts of RF radiation, with the result that the

minimum distance between the device and the user to achieve

compliance with SAR limits varies somewhat from device to

device. The FCC requires that cell phone user manuals

contain information that alerts users to the minimum

distances appropriate for the device they are using:

Specific information must be included in

the operating manuals to enable users to

select body-worn accessories that meet the

minimum test separation distance

requirements. Users must be fully informed
CTIA V. CITY OF BERKELEY 13

of the operating requirements and restrictions,

to the extent that the typical user can easily

understand the information, to acquire the

required body-worn accessories to maintain

compliance. Instructions on how to place and

orient a device in body-worn accessories, in

accordance with the test results, should also

be included in the user instructions. All

supported body-worn accessory operating

configurations must be clearly disclosed to

users, through conspicuous instructions in the

user guide and user manual, to ensure

unsupported operations are avoided.

In re Exposure Procedures and Equipment Authorization

Policies for Mobile and Portable Devices, FCC Office of

Engineering and Technology Laboratory Division § 4.2.2(d)

(Oct. 23, 2015) (“FCC Exposure Procedures”) (emphasis

added). Compliance with this disclosure requirement is a

prerequisite for approval of a transmitting device by the FCC. 

See id. at § 1.

The following are examples of cell phone user manuals

that comply with the FCC’s disclosure requirement:

Apple:

iPhone’s SAR measurement may exceed the

FCC exposure guidelines for body-worn

operation if positioned less than 15 mm

(5/8 inch) from the body (e.g. when carrying

iPhone in your pocket).
14 CTIA V. CITY OF BERKELEY

See iPhone 3G manual, at 7, http://manuals.info.apple.com/

MANUALS/0/MA618/en_US/iPhone_3G_Important_

Product_Information_Guide.pdf

Samsung:

If there is a risk from being exposed to radiofrequency energy (RF) from cell phones - and

at this point we do not know that there is - it is

probably very small. But, if you are concerned

about avoiding even potential risks, you can

take a few simple steps to minimize your RF

exposure.

• Reduce the amount of time spent using your

cell phone;

• Use speaker mode or a headset to place more

distance between your head and the cell

phone.

See Samsung Common Phone Health and Safety and

Warranty Guide, at 8, http://www.samsung.com/us/

Legal/PHONE-HS_GUIDE_English.pdf.

LG:

The highest SAR value for this model phone

when tested for use at the ear is 1.08 W/Kg

(1g) and when worn on the body, as described

in this user guide, is 0.95 W/Kg (1g) (bodyworn measurements differ among phone

models, depending upon available accessories

and FCC requirements). While there may be
CTIA V. CITY OF BERKELEY 15

differences between SAR levels of various

phones and at various positions, they all meet

the government requirement for safe

exposure. The FCC has granted an Equipment

Authorization for this model phone with all

reported SAR levels evaluated as in

compliance with the FCC RF emission

guidelines. SAR information on this model

phone is on file with the FCC and can be

found under the Display Grant section of

http://www. fcc.gov/oet/ ea/fccid/ after

searching on FCC ID ZNFL15G.

See LG Sunrise User Guide, at 93, http://www.lg.com/us/

support/manuals-documents

IV. Discussion

“A plaintiff seeking a preliminary injunction must

establish [1] that he is likely to succeed on the merits, [2] that

he is likely to suffer irreparable harm in the absence of

preliminary relief, [3] that the balance of equities tips in his

favor, and [4] that an injunction is in the public interest.”

Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). 

“[A] stronger showing of one element may offset a weaker

showing of another.” Alliance for the Wild Rockies v.

Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011). For example,

“a preliminary injunction could issue where the likelihood of

success is such that ‘serious questions going to the merits

were raised and the balance of hardships tips sharply in

[plaintiff’s] favor.’” Id. at 1132 (quoting Clear Channel

Outdoor, Inc. v. City of Los Angeles, 340 F.3d 810, 813 (9th

Cir. 2003).
16 CTIA V. CITY OF BERKELEY

A. Likelihood of Success

CTIA makes two merits-based arguments against the

Berkeley ordinance. First, it argues that the ordinance

violates the First Amendment. Second, it argues that the

ordinance is preempted. We take the arguments in turn.

1. First Amendment

The underlying disclosure at issue is the disclosure that

the FCC compels cell phone manufacturers to provide to

consumers. However, CTIA has not sued the FCC. Rather,

CTIA has sued Berkeley, challenging the disclosure Berkeley

compels cell phone retailers to provide to the same

consumers. The Berkeley ordinance requires cell phone

retailers to disclose, in summary form, the same information

to consumers that the FCC already requires cell phone

manufacturers to disclose. The Berkeley disclosure then

directs consumers to user manuals for more specific

information.

a. Central Hudson or Zauderer

The parties agree that Berkeley’s ordinance is a regulation

of commercial speech. Central Hudson Gas &Elec. Corp. v.

Pub. Serv. Comm’n of N.Y., 447 U.S. 557, 561 (1980); see

Hunt v. City of L.A., 638 F.3d 703, 715 (9th Cir. 2011). 

However, they disagree about whether the ordinance’s

compliance with the First Amendment should be analyzed

under Central Hudson or under Zauderer v. Office of

Disciplinary Counsel of the Supreme Court of Ohio, 471 U.S.

626 (1985).
CTIA V. CITY OF BERKELEY 17

Under Central Hudson, the government may restrict or

prohibit commercial speech that is neither misleading nor

connected to unlawful activity, as long as the governmental

interest in regulating the speech is substantial. 477 U.S. at

564. The restriction or prohibition must “directly advance the

governmental interest asserted,” and must not be “more

extensive than is necessary to serve that interest.” Id. at 566. 

Under Zauderer as we interpret it today, the government may

compel truthful disclosure in commercial speech as long as

the compelled disclosure is “reasonably related” to a

substantial governmental interest. Zauderer, 471 U.S. at 651;

see discussion infra.

We apply the intermediate scrutiny test mandated by

Central Hudson in commercial speech cases where speech is

restricted or prohibited, on the ground that in such cases

intermediate scrutiny appropriately protects the interests of

both the speaker (the seller) and the audience (the purchaser). 

But one size does not fit all in commercial speech cases. In

Central Hudson itself, the Supreme Court cautioned, “The

protection available for particular commercial expression

turns on the nature both of the expression and of the

governmental interests served by its regulation.” Central

Hudson, 477 U.S. at 563.

Five years after Central Hudson, the Court held that

Central Hudson’s intermediate scrutiny test does not apply to

compelled, as distinct from restricted or prohibited,

commercial speech. In Zauderer, defendant Zauderer

advertised legal services to prospective Dalkon Shield

plaintiffs in a number of Ohio newspapers. The

advertisement stated, inter alia, “‘The cases are handled on

a contingent fee basis of the amount recovered. If there is no

recovery, no legal fees are owed by our clients.’” Zauderer,
18 CTIA V. CITY OF BERKELEY

471 U.S. at 631. Zauderer was disciplined under Ohio state

bar disciplinary rules on the ground that the advertisement

was “deceptive” within the meaning of the rules, id. at 633,

because it failed to disclose “the client’s potential liability for

costs even if her suit were unsuccessful.” Id. at 635. The

Court noted that the bar disciplinary rules required Zauderer

to “include in his advertising purely factual and

uncontroversial information about the terms under which his

services will be available.” Id. at 651. The Court wrote,

“Ohio has not attempted to prevent attorneys from conveying

information to the public; it has only required them to provide

somewhat more information than they might otherwise be

inclined to present.” Id. at 650. The Supreme Court declined

to apply the Central Hudson test:

Because the extension of First Amendment

protection to commercial speech is justified

principally by the value to consumers of the

information such speech provides, appellant’s

constitutionally protected interest in not

providing anyparticular factual information is

minimal. . . . We recognize that unjustified

or unduly burdensome disclosure

requirements might offend the First

Amendment bychilling protected commercial

speech. But we hold that an advertiser’s

rights are adequately protected as long as

disclosure requirements are reasonablyrelated

to the State’s interest in preventing deception

of consumers.

Id. at 651 (internal citation omitted). See also Milavetz,

Gallop & Milavetz, P.A. v. United States, 559 U.S. 229, 253
CTIA V. CITY OF BERKELEY 19

(2010) (following Zauderer and using its “preventing

deception” language).

b. The Zauderer Test

i. Substantial Governmental Interest

CTIA contends that the Zauderer exception to the general

rule of Central Hudson does not apply in this case because

the speech compelled by the Berkeley ordinance does not

prevent deception of consumers. This is the first time we

have had occasion in this circuit to squarely address the

question whether, in the absence of a prevention-of-deception

rationale, the Zauderer compelled-disclosure test applies. Cf.

Video Software Dealers Ass’n v. Schwarzenegger, 556 F.3d

950, 967 (9th Cir. 2009) (invalidating compelled disclosure

on video game packaging, noting that the disclosure would

“arguably now convey a false statement that certain conduct

is illegal when it is not, and the State has no legitimate reason

to force retailers to affix false information on their

products”). Several of our sister circuits, however, have

answered this question. They have unanimously concluded

that the Zauderer exception for compelled speech applies

even in circumstances where the disclosure does not protect

against deceptive speech.

In American Meat Institute v. U.S. Department of

Agriculture, 760 F.3d 18 (D.C. Cir. 2014) (en banc), a

Department of Agriculture regulation required identification

of the country of origin on the packaging of meat and meat

products. Id. at 20. The regulation implemented a federal

statute requiring country-of-origin labeling. See 7 U.S.C.

§ 1638, 1638a. The D.C. Circuit held that Zauderer should

not be read to apply only to cases where government-
20 CTIA V. CITY OF BERKELEY

compelled speech prevents or corrects deceptive speech. It

noted that on the facts of both Zauderer and Milavetz (in

which the Court repeated Zauderer’s “preventing deception”

language) there had been deceptive speech: “Given the

subject of both cases, it was natural for the Court to express

the rule in such terms. The language could have been simply

descriptive of the circumstances to which the Court applied

its new rule[.]” Am. Meat, 760 F.3d at 22. The D.C. Circuit

concluded, “The language with which Zauderer justified its

approach . . . sweeps far more broadly than the interest in

remedying deception.” Id.

In National Electrical Manufacturers Association v.

Sorrell, 272 F.3d 104 (2d Cir. 2001), a Vermont statute

required manufacturers of mercury-containing products to

label their products and packaging to inform consumers that

the products contained mercury and instructing them that the

products should be disposed of or recycled as hazardous

waste. Id. at 107. The Second Circuit held that the

compelled disclosure was supported by a “substantial state

interest in protecting human health and the environment.” Id.

at 115 n. 6. Citing Zauderer, the court recognized that the

compelled disclosure did not “prevent ‘consumer confusion

or deception.’” Sorrell, 272. F.3d at 115. It nonetheless

upheld the disclosure as not “inconsistent with the policies

underlying First Amendment protection of commercial

speech.” Id. “[M]andated disclosure of accurate, factual,

commercial information does not offend the core First

Amendment values of promoting efficient exchange of

information or protecting individual liberty interests.” Id. at

114; see also N.Y. St. Rest. Ass’n v. N.Y. City Bd. of Health,

556 F.3d 114, 133 (2d Cir. 2009) (“Zauderer’s holding was

broad enough to encompass nonmisleading disclosure

requirements.”); Discount Tobacco City & Lottery, Inc. v.
CTIA V. CITY OF BERKELEY 21

United States, 674 F.3d 509, 556–58 (6th Cir. 2012)

(upholding federally required health warnings on cigarette

packaging and in cigarette advertisements, relying on the

Second Circuit’s opinion in Sorrell); Pharm. Care Mgmt.

Ass’n v. Rowe, 429 F.3d 294, 310 n.8 (1st Cir. 2005) (noting

that the court had found no cases limiting application of the

Zauderer compelled speech test to prevention or correction of

deceptive advertising); cf. Dwyer v. Cappell, 762 F.3d 275,

281–82 (3d Cir. 2014) (describing but not relying on

Zauderer’s preventing-deception criterion).

We agree with our sister circuits that under Zauderer the

prevention of consumer deception is not the only

governmental interest that may permissibly be furthered by

compelled commercial speech. We conclude that any

governmental interest will suffice so long as it is substantial. 

In American Meat, the D.C. Circuit declined to decide

whether the governmental interest must be substantial,

leaving open the question whether a less-than-substantial

interest might suffice. See Am. Meat, 760 F.3d at 23

(“Because the interest motivating the 2013 [country-oforigin] rule is a substantial one, we need not decide whether

a lesser interest could suffice under Zauderer.”). We answer

the question avoided in American Meat, holding that

Zaudererrequires that the compelled disclosure further some

substantial—that is,more than trivial—governmental interest. 

Central Hudson explicitly requires that a substantial interest

be furthered by a challenged regulation prohibiting or

restricting commercial speech, and we see nothing in

Zauderer that would allow a lesser interest to justify

compelled commercial speech. To use the words of the

Second Circuit in Sorrell, the interest at stake must be more

than the satisfaction of mere “consumer curiosity.” Sorrell,

272 F.3d at 115 n.6; see also Am. Meat, 760 F.3d at 23
22 CTIA V. CITY OF BERKELEY

(“Country-of-origin information has an historical pedigree

that lifts it well beyond ‘idle curiosity.’”).

ii. Purely Factual Information

The Court in Zauderer noted that the compelled

disclosure in that case was of “purely factual and

uncontroversial information.” Zauderer, 471 U.S. at 651. 

The Court did not, however, require in its constitutional test

that the disclosed information be “purely factual and

uncontroversial.” Some lower courts have recited, without

discussion, the “purely factual and uncontroversial” language

as part of the Zauderer test. See, e.g., Nat’l Ass’n of Mfrs. v.

S.E.C., 800 F.3d 518, 541 (D.C. Cir. 2015) (“But whatever

may be the complexities of applying the standard in discrete

situations, as a matter of precedent, an obligation in the

commercial sphere to disclose ‘purely factual and

uncontroversial’ information about a product draws

deferential First Amendment review.”); Safelite Grp., Inc. v.

Jepsen, 764 F.3d 258, 263 (2d Cir. 2014) (“On a cursory

review, our precedent arguably supports the district court’s

conclusion that this law simply requires disclosure of

accurate, factual information.”); Cent. Illinois Light Co. v.

Citizens Util. Bd., 827 F.2d 1169, 1173 (7th Cir. 1987) (“In

Zauderer, the Court held that Ohio could constitutionally

require an attorney to include in a commercial advertisement,

purely factual and uncontroversial information about the

terms under which the attorney’s services are available.”).

Given that the purpose of the compelled disclosure is to

provide accurate factual information to the consumer, we

agree that any compelled disclosure must be “purely factual.” 

However, “uncontroversial” in this context refers to the

factual accuracy of the compelled disclosure, not to its
CTIA V. CITY OF BERKELEY 23

subjective impact on the audience. This is clear from

Zauderer itself. The State of Ohio required attorneys to

disclose “the client’s potential liability for costs even if her

suit were unsuccessful.” Zauderer, 471 U.S. at 635. Ohio

law permitted attorneys to charge clients for costs even after

advertising and agreeing to represent their clients on a

contingency-fee basis and losing the suit. Recognizing that

the difference between fees and costs might not be apparent

to prospective clients, Ohio required attorneys to disclose that

a contingency fee arrangement might still require the client to

pay some money to the attorney. This required disclosure

was factually accurate. That the disclosure may have caused

controversy, for example by discouraging customers from

hiring lawyers who offered contingency-fee arrangements

because they feared “hidden costs” or by harming the

reputation of the lawyers who offered such fee arrangements,

did not affect the constitutional analysis. What mattered was

that the disclosure provided accurate factual information to

the consumer. We therefore conclude that Zauderer requires

only that the information be “purely factual.”

c. Application of Zauderer Test

Under Zauderer, compelled disclosure of commercial

speech complies with the First Amendment if the information

in the disclosure is reasonably related to a substantial

governmental interest and is purely factual. The question

before us is whether the speech compelled by the Berkeley

ordinance satisfies this test.
24 CTIA V. CITY OF BERKELEY

i. Reasonably Related to a Substantial Governmental

Interest

There is no question that protecting the health and safety

of consumers is a substantial governmental interest. See, e.g.,

Posadas de Puerto Rico Assocs. v. Tourism Co. of Puerto

Rico, 478 U.S. 328, 341 (1986) (“[H]ealth, safety, and

welfare constitute[] a ‘substantial’ governmental interest”). 

The federal government and Berkeley have both sought to

further that interest. By adopting SAR limits on exposure to

RF radiation, the FCC has furthered the interest of protecting

the health and safety of cell phone users in the United States. 

It has done so by adopting a highly protective policy, setting

low SAR limits on RF radiation and compelling cell phone

manufacturers to disclose information to cell phone users that

will allow them to avoid exceeding those limits. By passing

its ordinance, the City of Berkeley has furthered that same

interest. After finding that cell phone users are largely

unaware of the FCC policy and of the information in their

user manuals, the Berkeley City Council decided to compel

retailers in Berkeley to provide, in summary form, the same

information that the FCC already requires cell phone

manufacturers to provide to those same consumers, and to

direct those consumers to their user manuals for more

detailed information. See Jensen Decl., Ex. A (survey)

(reflecting that a majority of persons surveyed were not

“aware that the government’s radiation tests to assure the

safety of cell phones assume that a cell phone would not be

carried against your body, but would instead be held at least

1 to 15 millimeters from your body”).

CTIA argues strenuously that radio-frequency radiation

from cell phones has not been proven dangerous to

consumers. Limiting itself to research published when the
CTIA V. CITY OF BERKELEY 25

record was made in this case, CTIA is correct in pointing out

that there was nothing then before the district court showing

that such radiation had been proven dangerous. But this is

beside the point. The fact that RF radiation from cell phones

had not been proven dangerous was well known to the FCC

in 1996 when it adopted SAR limits to RF radiation; was well

known in 2013 when it refused to exclude cell phones from

its rule adopting SAR limits; and was well known in 2015

when it required cell phone manufacturers to tell consumers

how to avoid exceeding SAR limits. After extensive

consultation with federal agencies with expertise about the

health effects of radio-frequency radiation, the FCC decided,

despite the lack of proof of dangerousness, that the best

policy was to adopt SAR limits with a large margin of safety.

The FCC concluded that requiring cell phone

manufacturers to inform consumers in their users manuals of

SAR limits on RF radiation, and to tell them how to avoid

excessive exposure, furthered the federal government’s

interest in protecting their health and safety. The City of

Berkeley concluded that consumers were largely unaware of

the contents of their users manuals. Agreeing with the FCC

that the information about SAR limits and methods of

avoiding excessive exposure is important, Berkeley requires

cell phone retailers to provide some of that same information

to consumers and to direct them to their user manuals for

further details. We are not in a position to disagree with the

conclusions of FCC and Berkeley that this compelled

disclosure is “reasonably related” to protection of the health

and safety of consumers.
26 CTIA V. CITY OF BERKELEY

ii. Purely Factual

CTIA argues that Berkeley’s compelled disclosure is not

“purely factual” within the meaning of Zauderer. We

disagree.

For the convenience of the reader, we again provide the

full text of the compelled disclosure:

The City of Berkeley requires that you be

provided the following notice:

To assure safety, the Federal Government

requires that cell phones meet radiofrequency (RF) exposure guidelines. If

you carry or use your phone in a pants or

shirt pocket or tucked into a bra when the

phone is ON and connected to a wireless

network, you may exceed the federal

guidelines for exposure to RF radiation. 

Refer to the instructions in your phone or

user manual for information about how to

use your phone safely.

Berkeley Mun. Code § 9.96.030(A) (2015).

The text of the compelled disclosure is literally true. We

take it sentence by sentence:

(1) “To assure safety, the Federal Government requires

that cell phones meet radio-frequency (RF) exposure

guidelines.” This statement is true. As recounted above,

beginning in 1996 the federal government has set RF

exposure guidelines with which cell phones must comply.
CTIA V. CITY OF BERKELEY 27

(2) “If you carry or use your cell phone in a pants or shirt

pocket or tucked into a bra when the phone is ON and

connected to a wireless network, you may exceed the federal

guidelines for exposure to RF radiation.” This statement is

also true. The FCC has established SAR limits for RF

radiation, and has concluded that maintaining a certain

separation between a cell phone and the user’s body protect

consumers from exceeding these limits.

(3) “Refer to the instructions in your phone or user

manual for information about how to use your phone safely.” 

This sentence is an instruction rather than a direct factual

statement. However, it clearly implies a factual statement

that “information about how to use your phone safely” in

compliance with the FCC’s RF “exposure guidelines” “to

assure safety,” may be found either in a cell phone or user

manual. This implied statement, too, is true.

We recognize, of course, that a statement may be literally

true but nonetheless misleading and, in that sense, untrue. 

That is what CTIA argues here. CTIA argues that the

compelled disclosure is inflammatory and misleading, and

that it is therefore not “purely factual.” CTIA bases its

argument solely on the text of the ordinance.

CTIA argues that “[t]he Ordinance requires an

inflammatory warning about unfounded safety risks”; that

“[t]he Ordinance clearly and deliberately suggests that the

federal RF energy testing guideline (the SAR limit) is the

demarcation point of ‘safety’ for cell phones, such that

‘exposure’ to RF energy above that limit creates a safety

hazard”; and that “[t]he Ordinance is misleading for the

additional reason that it uses the inflammatory term

‘radiation,’ which is fraught with negative associations, in
28 CTIA V. CITY OF BERKELEY

order to stoke consumer anxiety.” CTIA argues further that

the phrase “RF radiation” is “fraught with negative

associations,” that it is used in the compelled disclosure “in

order to stoke consumer anxiety,” and that it is therefore not

“purely factual.”

We read the text differently. The first sentence tells

consumers that cell phones are required to meet federal “RF

exposure guidelines” in order “[t]o assure safety.” Far from

inflammatory, this statement is largely reassuring. It assures

consumers that the cell phones they are about to buy or lease

meet federally imposed safety guidelines.

The second sentence tells consumers what to do in order

to avoid exceeding federal guidelines. This statement may

not be reassuring, but it is hardly inflammatory. It provides

in summary form information that the FCC has concluded

that consumers should know in order to ensure their safety. 

Indeed, the FCC specifically requires cell phone

manufacturers to provide this information to consumers. See

“FCC Exposure Procedures” § 4.2.2(d) (“Specific

information must be included in the operating manuals to

enable users to select body-worn accessories that meet the

minimum test separation distance requirements. . . . All

supported body-worn accessory operating configurations

must be clearly disclosed to users, through conspicuous

instructions in the user guide and user manual, to ensure

unsupported operations are avoided.”) (emphasis added).

The third sentence tells consumers to consult their user

manuals to obtain further information—that is, to obtain the

very information the FCC requires cell phone manufacturers

to provide in “conspicuous instructions” in user manuals.
CTIA V. CITY OF BERKELEY 29

Further, the phrase “RF radiation,” used in the second

sentence, is precisely the phrase the FCC has used, beginning

in 1996, to refer to radio-frequency emissions from cell

phones. See FCC Guidelines for Radio frequency Radiation

at ¶ 1, supra at 9 (“radio-frequency (RF) radiation”). We do

not fault Berkeley for using the term “RF radiation” when

referring to cell phone emissions when it is not only the

technically correct term, but also the term the FCC itself uses

to refer to such emissions.

Finally, we note that the Berkeley ordinance allows a cell

phone retailer to add to the compelled disclosure. If a retailer

is concerned, as CTIA contends it should be, that the term

“RF radiation” is inflammatory and misleading, the retailer

may add to the compelled disclosure any further statement it

sees fit to add. See § 9.96.030(B) (“The paper on which the

notice is printed may contain other information in the

discretion of the Cell phone retailer[.]”). CTIA has put

nothing in the record to indicate that anyBerkeley retailer has

felt it necessary, or even useful, to add explanatory

information about the nature of RF radiation. Nor has CTIA

presented any evidence in the district court showing how

Berkeley consumers have understood the compelled

disclosure, or evidence showing that sales of cell phones in

Berkeley were, or are likely to be, depressed as a result of the

compelled disclosure.

d. Likelihood of Success

Based on the foregoing, we conclude that CTIA has little

likelihood of success on its First Amendment claim that the

disclosure compelled by the Berkeley ordinance is

unconstititutional.
30 CTIA V. CITY OF BERKELEY

2. Preemption

a. Conflict Preemption

“Federal preemption occurs when: (1) Congress enacts a

statute that explicitly preempts state law; (2) state law

actuallyconflicts with federal law; or (3) federal law occupies

a legislative field to such an extent that it is reasonable to

conclude that Congress left no room for state regulation in the

legislative field.” Chae v. SLM Corp., 593 F.3d 936, 941 (9th

Cir. 2010) (internal quotation marks omitted). CTIA

contends that Berkeley’s compelled disclosure is invalid

because of conflict preemption.

“Conflict preemption is implicit preemption of state law

that occurs where there is an actual conflict between state and

federal law.” McClellan v. I-Flow Corp., 776 F.3d 1035, 1039

(9th Cir. 2015) (citations and internal quotation marks

omitted). “When Congress charges an agencywith balancing

competing objectives, it intends the agencyto use its reasoned

judgment to weigh the relevant considerations and determine

how best to prioritize those objectives. Allowing a state law

to impose a different standard [impermissibly] permits a rebalancing of those objectives.” Farina v. Nokia Inc.,

625 F.3d 97, 123 (3d Cir. 2010). Conflict preemption arises

either when “compliance with both federal and state

regulations is a physical impossibility . . . or when state law

stands as an obstacle to the accomplishment and execution of

the full purposes and objectives of Congress.” McClellan,

776 F.3d at 1039 (citations and internal quotation marks

omitted). We are concerned here with “obstacle” preemption. 

CTIA contends that Berkeley’s compelled disclosure creates

an impermissible obstacle by requiring more disclosure than

is required by the FCC. See Crosby v. Nat’l Foreign Trade
CTIA V. CITY OF BERKELEY 31

Council, 530 U.S. 363, 373 (2000) (finding preemption where

a challenged state law “stands as an obstacle to the

accomplishment and execution of the full purposes and

objectives of Congress.”) (internal quotation marks omitted).

b. Telecommunications Act of 1996

“Preemption analysis ‘start[s] with the assumption that

the historic police powers of the States were not to be

superseded by the Federal Act unless that was the clear and

manifest purpose of Congress.’” City of Columbus v. Ours

Garage and Wrecker Serv., Inc., 536 U.S. 424, 438 (quoting

Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996)). 

“Congressional intent, therefore, is the ultimate touchstone of

preemption analysis.” Engine Mfrs. Ass’n v. S. Coast Air

Quality Mgmt. Dist., 498 F.3d 1031, 1040 (9th Cir. 2007)

(citing Tocher v. City of Santa Ana, 219 F.3d 1040, 1045 (9th

Cir. 2000)).

The FCC’s organic statute is the Telecommunications Act

of 1996 (“the Act”), 110 Stat. 56. Legislative hearings, as

well as the Act itself, show that Congress desired “uniform,

consistent requirements, with adequate safeguards of public

health and safety” in nationwide telecom services. See H.R.

Rep. No. 104-204, 94 (1996). The Act delegated to the FCC

the authority “to ‘make effective rules regarding the

environmental effects of [RF] emissions.’” Farina v. Nokia

Inc., 625 F.3d 97, 106 (3d Cir. 2010) (quoting 110 Stat. 56,

152). Specifically, “the FCC was tasked not only with

protecting the health and safety of the public, but also with

ensuring the rapid development of an efficient and uniform

network[.] Id. at 125. This led to the creation of the

regulatory measures described supra.
32 CTIA V. CITY OF BERKELEY

The centerpiece of CTIA’s argument is that the FCC does

not compel cell phone manufacturers to provide information

to consumers about SAR limits on RF radiation exposure. 

CTIA did not make this argument in the district court. 

Indeed, it conceded in its briefing in the district court that the

FCC did so require. See, e.g., Plaintiff’s Reply in Support of

Motion for a Preliminary Injunction at 12 (“The manner in

which Berkeley requires CTIA’s members to deliver

Berkeley’s message—at the point of sale, rather than in a user

manual—also distinguishes the Ordinance from the FCC’s

requirements.”) (emphasis added). CTIA made this argument

for the first time in its Reply Brief in this court, and it

repeated the argument during oral argument to our panel.

Because CTIA conceded the point in the district court and

made its argument to the contrary only before us (and even

then only in its Reply Brief and during oral argument), it is

waived. See Conn. Gen. Life Ins. Co. v. New Images of

Beverly Hills, 321 F.3d 878, 882 (9th Cir. 2003) (“This issue

is raised for the first time on appeal, and we therefore treat

the issue as waived.”); United States v. Bohn, 956 F.2d 208,

209 (9th Cir. 1992) (“we ordinarily decline to consider

arguments raised for the first time in a reply brief”). But we

note that if we were to consider CTIA’s argument on the

merits, we would reject it. Beginning in October 2015, the

FCC required cell phone manufacturers to inform consumers

of minimum separation distances in user manuals. We quoted

the relevant passage, supra at 12–13. For the convenience of

the reader, we repeat much of the passage here:

Specific information must be included in

the operating manuals to enable users to

select body-worn accessories that meet

the minimum test separation distance
CTIA V. CITY OF BERKELEY 33

requirements. Users must be fully informed of

the operating requirements and restrictions, to

the extent that the typical user can easily

understand this information, to acquire the

required body-worn accessories to maintain

compliance. . . . All supported body-worn

accessory operating configurations must be

clearly disclosed to users, through

conspicuous instructions in the user guide and

user manual, to ensure unsupported operations

are avoided.

In re Exposure Procedures and Equipment Authorization

Policies for Mobile and Portable Devices, FCC Office of

Engineering and Technology Laboratory Division § 4.2.2(d)

at 11 (Oct. 23, 2015) (“FCC Exposure Procedures”)

(emphases added). The FCC document containing this

language “is one of a collection of guidance publications

referred to as the published RF exposure KDB procedures.” 

Id. § 1 at 1 (emphasis in original). The document specifies

that “[a]pplications for equipment authorizationmust meet all

the requirements described in the applicable published RF

exposure KDB procedures.” Id. § 2 at 3 (emphasis in

original). That is, in order for a cell phone to be authorized

by the FCC for consumer use, it must satisfy the requirements

outlined in FCC Exposure Procedures.

c. Likelihood of Success

Given the FCC’s requirement that cell phone

manufacturers must inform consumers of “minimum test

separation distance requirements,” and must “clearly

disclose[ ]” accessory operating configurations “through

conspicuous instructions in the user guide and user manual,
34 CTIA V. CITY OF BERKELEY

to ensure unsupported operations are avoided,” we see little

likelihood of success based on conflict preemption. 

Berkeley’s compelled disclosure does no more than to alert

consumers to the safetydisclosures that the FCC requires, and

to direct consumers to federally compelled instructions in

their user manuals providing specific information about how

to avoid excessive exposure. Far from conflicting with

federal law and policy, the Berkeley ordinance complements

and reinforces it.

B. Irreparable Harm

Irreparable harm is relatively easy to establish in a First

Amendment case. “[A] party seeking preliminary injunctive

relief in a First Amendment context can establish irreparable

injury . . . by demonstrating the existence of a colorable First

Amendment claim.” Sammartano v. First Judicial District

Court, 303 F.3d 959, 973 (9th Cir. 2002) (citation omitted),

abrogated on other grounds by Winter v. Natural Res. Def.

Council., 555 U.S. 7, 22 (2008). We nonetheless conclude

that it has not been established here.

“[T]he loss of First Amendment freedoms, for even

minimal periods of time, unquestionably constitutes

irreparable injury.” Id. (citing Elrod v. Burns, 427 U.S. 347,

373 (1976)). But the mere assertion of First Amendment

rights does not automatically require a finding of irreparable

injury. It is the “purposeful unconstitutional suppression of

speech [that] constitutes irreparable harm for preliminary

injunction purposes.” Goldie’s Bookstore v. Superior Ct.,

739 F.2d 466, 472 (9th Cir. 1984). We have already

concluded under the Zauderer test for compelled disclosure

that, on the record before us, Berkeley’s ordinance complies

with the First Amendment. Sammartano, 303 F.3d at 973–74
CTIA V. CITY OF BERKELEY 35

(“[T]he test for granting a preliminary injunction is ‘a

continuum in which the required showing of harm varies

inversely with the required showing of meritoriousness,’

when the harm claimed is a serious infringement on core

expressive freedoms, a plaintiff is entitled to an injunction

even on a lesser showing of meritoriousness.”). Further, there

is nothing in the record showing harm to CTIA or its

members through actual or threatened reduction in sales of

cell phones caused by the disclosure compelled by the

ordinance.

We conclude similarly that there has been no irreparable

harm based on preemption.

C. Balance of the Equities

A court must “balance the interests of all parties and

weigh the damage to each” in determining the balance of the

equities. Stormans, Inc. v. Selecky, 586 F.3d 1109, 1138 (9th

Cir. 2009).

CTIA asserts that implementing the ordinance will cause

its members substantial economic harm and violate their First

Amendment rights. We have concluded that CTIA’s First

Amendment claim is unlikely to succeed, and the record

provides no evidence to support a finding of economic or

reputational harm to cell phone retailers. However, CTIA

relies on Pacific Gas & Electric Co. v. Public Utilities

Commission of California, 475 U.S. 1, 15–16 (1986), to argue

that, while disclosures may not violate the First Amendment,

the ordinance imposes an “undue burden” on CTIA’s

members because it creates significant “pressure to respond,”

and that this pressure is “antithetical to the free discussion

that the First Amendment seeks to foster.” There is no
36 CTIA V. CITY OF BERKELEY

showing of any such pressure. The ordinance requires

CTIA’s members to inform their customers that the FCC has

promulgated regulations concerning RF emissions and to

advise customers to refer to their user manuals for more

information. To the extent that a cell phone retailer is

dissatisfied with the disclosure as written, it can append

additional disclosures. Berkeley Ordinance, § 9.96.030(C)

(May 26, 2015). CTIA has put nothing in the record showing

that anyBerkeley cell phone retailer has felt pressured, or has

sought to take advantage of the provision of the ordinance

allowing it to make any additional disclosure it desires. See

also Milavetz, 559 U.S. at 250 (“not preventing . . . [the]

convey[ance] of any additional information” is one of the

essential features of a Zauderer disclosure).

Berkeley properly asserts that it has a substantial interest

in protecting the health of its citizens. CTIA, on the other

hand, has failed to demonstrate any hardship tipping the

balance in its favor. We conclude that the balance of the

equities favors Berkeley.

D. The Public Interest

“The public interest inquiryprimarilyaddresses impact on

non-parties rather than parties. It embodies the Supreme

Court’s direction that[,] in exercising their sound discretion,

courts of equity should pay particular regard for the public

consequences in employing the extraordinary remedy of

injunction.” Bernhardt v. Los Angeles Cty., 339 F.3d 920,

931–32 (9th Cir. 2003) (internal quotation marks and citation

omitted) (citing Weinberger v. Romero-Barcelo, 456 U.S.

305, 312 (1982)). We agree with the district court that an

injunction would injure the public interest in having a free

flow of accurate information.
CTIA V. CITY OF BERKELEY 37

“Protection of the robust and free flow of accurate

information is the principal First Amendment justification for

protecting commercial speech, and requiring disclosure of

truthful information promotes that goal.” Nat’l Elec. Mfrs.

Ass’n, 272 F.3d at 114. The district court found that while

“‘accurate and balanced disclosures regarding RF energy are

already available’ . . . there is evidence that the public does

not know about those disclosures.” (citing Jensen Decl., Ex.

A (survey)). Because “disclosure furthers, rather than hinders

. . . the efficiency of the ‘marketplace of ideas,’” we hold that

the ordinance is in the public interest and that an injunction

would harm that interest. See Nat’l Elec. Mfrs. Ass’n,

272 F.3d at 114.

Conclusion

Our assessment of the probability of CTIA’s success on

the merits, the likelihood of irreparable harm, the balance of

the hardships, and the public interest lead us to conclude that

the district court did not abuse its discretion in denying

preliminary injunctive relief to CTIA. Accordingly, the

district court’s order denying such relief is

AFFIRMED.
38 CTIA V. CITY OF BERKELEY

FRIEDLAND, Circuit Judge, dissenting in part:

The majority interprets the sentences in Berkeley’s forced

disclosure statement one at a time and holds that each is

“literally true.” But consumers would not read those

sentences in isolation the way the majority does. Taken as a

whole, the most natural reading of the disclosure warns that

carrying a cell phone in one’s pocket is unsafe. Yet Berkeley

has not attempted to argue, let alone to prove, that message is

true.

It is clear that the First Amendment prevents the

government from requiring businesses to make false or

misleading statements about their own products. See Video

Software Dealers Ass’n v. Schwarzenegger, 556 F.3d 950,

967 (9th Cir. 2009), aff’d sub nom. Brown v. Entm’t Merchs.

Ass’n, 564 U.S. 786 (2011). Because—at least on the current

record—that is what Berkeley’s ordinance would do, I

believe the ordinance likelyviolates the First Amendment and

therefore should have been preliminarily enjoined.1See Klein

v. City of San Clemente, 584 F.3d 1196, 1207–08 (9th Cir.

2009) (“Both this court and the Supreme Court have

repeatedly held that ‘[t]he loss of First Amendment freedoms,

for even minimal periods of time, unquestionably constitutes

irreparable injury.’” (quoting Elrod v. Burns, 427 U.S. 347,

373 (1976))).

I

Berkeley’s ordinance requires stores selling cell phones

to provide a disclosure stating:

1

I agree with the majority’s preemption analysis so dissent only from

sections IV.A.1., IV.B., IV.C., and IV.D. of the majority opinion.
CTIA V. CITY OF BERKELEY 39

To assure safety, the Federal Government

requires that cell phones meet radio-frequency

(RF) exposure guidelines. If you carry or use

your phone in a pants or shirt pocket or tucked

into a bra when the phone is ON and

connected to a wireless network, you may

exceed the federal guidelines for exposure to

RF radiation. Refer to the instructions in your

phone or use manual for information about

how to use your phone safely.

Berkeley Mun. Code § 9.96.030(A) (2015).

The majority parses these sentences individually and

concludes that each is “literally true.” In my view, this

approach misses the forest for the trees. On its face, the

disclosure begins and ends with references to safety, plainly

conveying that the intervening language describes something

unsafe. Indeed, the disclosure directs consumers to their user

manuals for instructions on “how to use your phone safely.” 

The message of the disclosure as a whole is clear: carrying a

phone “in a pants or shirt pocket or tucked into a bra” is not

safe. Yet that implication is a problem for Berkeley because

it has not offered any evidence that carrying a cell phone in

a pocket is in fact unsafe. Instead, it has expressly denied that

the required disclosure conveys that message. I disagree.

Berkeley insists the ordinance “rests exclusively upon

existing FCC regulations.” But those regulations

communicate something far different than does the ordinance. 

The FCC guidelines make clear that they are designed to

incorporate a many-fold safety factor, such that exposure to

radiation in excess of the guideline level is considered by the

FCC to be safe:
40 CTIA V. CITY OF BERKELEY

Our current RF exposure guidelines . . .

include[e] a significant “safety” factor,

whereby the exposure limits are set at a level

on the order of 50 times below the level at

which adverse biological effects have been

observed in laboratory animals as a result of

tissue heating resulting from RF exposure. 

This “safety” factor can well accommodate a

variety of variables such as different physical

characteristics and individual sensitivities—

and even the potential for exposures to occur

in excess of our limits without posing a health

hazard to humans.

In re Reassessment of FCC Radiofrequency Exposure Limits

and Policies, 28 FCC Rcd. 3498, 3582 (Mar. 29, 2013)

(emphasis added). There is thus no evidence in the record

that the message conveyed by the ordinance is true.2

2

 Because even under Zauderer v. Office of Disciplinary Counsel of

Supreme Court of Ohio, 471 U.S. 626 (1985), any forced disclosure

statement must be truthful, see id. at 651, I do not think that any

discussion of Zauderer is appropriate in this case. If nevertheless I were

to consider the extent of Zauderer’s applicability, as the majority does, I

would be inclined to conclude that Zauderer applies only when the

government compels a truthful disclosure to counter a false or misleading

advertisement. Given that the disclosure in Zauderer itself prevented an

advertisement from being misleading, I have serious doubt that the

Supreme Court intended the Zauderer test to apply in broader

circumstances. See id. (“[W]e hold that an advertiser’s rights are

adequately protected as long as disclosure requirements are reasonably

related to the State’s interest in preventing deception of consumers.”). 

The majority’s contrary conclusion also seems to me to be in tension with

our decision in Video Software Dealers, which treated Zauderer as

applying only in the context of disclosures aimed at combatting otherwise

misleading advertising. See 556 F.3d at 967 (“[T]he labeling requirement
CTIA V. CITY OF BERKELEY 41

II

The First Amendment clearly does not permit the

government to force businesses to make false or misleading

statements about their products. In Video Software Dealers,

we considered a challenge to a California law requiring that

“violent” video games be labeled with a sticker that said “18”

and preventing the sale or rental of violent video games to

minors. 556 F.3d at 953–54. After striking down the law’s

sale and rental prohibition, we concluded that continuing to

require the label “18” “would arguably . . . convey a false

statement” that minors could not buy or rent the video game,

and was therefore unconstitutional. Id. at 965–67. The same

principle applies here: the First Amendment prohibits

Berkeley from compelling retailers to communicate a

misleading message. I would thus hold that CTIA is likely to

succeed on the merits of its First Amendment challenge.

There are downsides to false, misleading, or

unsubstantiated product warnings. Psychological and other

social science research suggests that overuse may cause

people to pay less attention to warnings generally: “[A]s the

number of warnings grows and the prevalence of warnings

about low level risks increases, people will increasingly

ignore or disregard them.” J. Paul Frantz et al., Potential

Problems Associated with Overusing Warnings, Proceedings

of the Human Factors & Ergonomics Soc’y 43rd Ann.

Meeting 916, 916 (1999). Relatedly, “[w]arnings about very

minor risks or risks that are extremely remote have raised

concerns about negative effects on the believability and

fails Zauderer’s rational relationship test, which asks if the ‘disclosure

requirements are reasonably related to the State’s interest in preventing

deception of customers.’” (quoting Zauderer, 471 U.S. at 651)).
42 CTIA V. CITY OF BERKELEY

credibility of warnings. . . . In essence, such warnings

represent apparent false alarms as they appear to be ‘crying

wolf.’” Id. at 918; see also David W. Stewart & Ingrid M.

Martin, Intended and Unintended Consequences of Warning

Messages: A Review and Synthesis of Empirical Research,

13 J. Pub. Pol’y & Marketing 1, 7 (1994). If Berkeley wants

consumers to listen to its warnings, it should stay quiet until

it is prepared to present evidence of a wolf.