F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

CTI A

- T H E W I R

E L E S S A S S O C I A T I O N ,

Plaintiff-Appellant
,

v

.

C I T Y O F B E R

K E L E Y , California; C H R I S T I N E D A N I E L , City Manag er of B erkeley
, California, in her official capacity
, Defendants-Appellees. No. 16-15141

D.C. No. 3:15-cv-02529-EMC

OPI NI ON

A ppeal from the United States District Court for the Northern District of California Edward M. Chen, District J u dg e, Presiding

Arg u ed and Submitted September 13, 2016 San F rancisco, California

F iled April 21, 2017

B efore: W illiam A. F letcher, Morg an B . Christen, and Michelle T. F riedland, Circuit J udg es.

Opinion by J udg e W . F letcher; Dissent by

J udg e F riedlandCTI A V

. C I T Y O F B E R K E L E Y 2

SUMMARY *

F irst Am endm e nt/P reem ption

The panel affirmed the d istrict court’s o r d e r d eny ing a request for a preliminary injunction seeki n g to stay enforcement of a City of B e rkeley ordinance requiring c ell phone retailers to i nform prospective cell phone purchasers that carry ing a cell p hone in certain way s may cause them to

ex c e ed F ederal Communications Commission g uidelines for

ex p osure to radio-frequency radiation.

Apply ing Zauderer v

. O

ffice of Disciplinary Counsel of the Supreme Court of Ohio
, 471 U.S. 626 ( 1 9 8 5 ), the panel held that the City ’ s compelled dis c l osure of commercial speech c omplied with the F irst Amendment because the information in the disclosure was reasonably related to a substantial g overnmental interest and was pur ely factual. According ly
, the panel concluded that plainti f f had little likelihood of success on its F irst Amendmen t claim that the disclosure compelled by the B erkeley ordinance was unconstitutional.

The pane l d e termined that there was little likelihood o f

success on p laintiff’s c ontention that the B erkeley ordinance

was preempted. The p anel held that B erkeley ’s compe lled disclosure did no more than alert c o n sumers to the safety disclosures that the F ederal Communication Co m m i ssion requires, and to d irect c o nsumers to federally compelled instructio n s in their user manuals providing specific

* T h is su m m ary co n stitu

tes n o p art o f th e o pin io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.CTI A V

. C I T Y O F B E R K E L E Y 3

informa t i o n a

bout how to a void ex cessive ex posure. The panel held that far f

r o m c o nflicting with federal law a nd policy
, the B erkeley o r dinance complements and reinforces it.

I n affirming the denial of a preliminary injunction, the panel further determined that there was no irreparable harm b ased on the F irst Amendment or preemption, th a t t h e balance o f e q u i ties tipped in B erkeley ’s favor, that the ordinance was in the public inte rest, and that a n injunction would harm that interest.

Dissenting in part, J udg e F r iedland stated that B erkeley ’s ordinance likely

violates the F irst Amendment and therefore should have been preliminarily enjoined. She stated that taken as a w hole, the most natural reading o f the B erkeley disclosure warns that carry ing a cell phone in one’s pocket is unsafe. Yet B erkeley had not a ttempted to arg ue, let alone to prove, that messag e was true.

COUNSEL

Theodore B

. Olson (a r gued), Helg i C. W alker, Michael R. Huston, and J acob T

. Spencer, Gibson Dunn & Crutcher L L P, W a shing ton, D.C.; J oshua S. L ipshutz and J oshua D. Dick, Gibson Dunn & Crutcher L L P, San F rancisco, California; for Plaintiff-Appellant.

Le s t e r La w r e n c e L e s s i g, I I I ( a r g u e d )
, C a m b r i d g e , Massachusetts; Amana Shanor, New Haven, Connecticut; Savith I y eng ar, Deputy City Attorney ; Zach Cowan, City Attorney ; B erkeley City Attorney ’s Office, B erkeley
, California; for Defendants-Appellants.CTI A V

. C I T Y O F B E R K E L E Y 4

Robert Corn-Revere and Ronald G. L ondon, Davis W righ t Tremain e L L P, W ashing ton, D.C., for Amicus Curiae The Association of National Advertisers, I n c.

S e l e n a K y l e , C h i c a go , I l l i n o i s ; A a r o n C o l a n ge l o , W a shing ton, D.C.; as and for Amicus Curiae Natural Resources Defense Council.

R. Matthew W ise, Deputy Attorn ey General; Mark R. B ecking ton, Supervising Deputy Attorney General; D oug las J

. W o o ds, Senio r Assistant Attorney General; Kathleen A

. Kenealy
, Chief Assistant A ttorney General; Sacrament o, California; a s and fo r Amicus Curiae A ttorney General o f California.

OP INION

W

. F L ETCHER, Circuit J udg e:

A City of B erkeley ordinance requires cell p hone retailers
to inform prospective c ell phone p urchas e r s t hat carry ing a cell phone in certain way s may cause them to ex ceed F ederal Communications Commis s i o n g uidelines for ex posure to radio-frequency radiation. CTI A, a trade a ssociation f o r m e r l y k n o w n a s C e l l u l a r T e l e p h o n e I n d u s t r i e s Association, c halleng es the ordinance o n two g rounds. F irst, it arg u es that the o rdinance violates t h e F irst Amendment. Second, it arg u es that the ordinance is preempted.

CTI A requested a prel i m i nary injunction stay ing enforcement of the ordinance. T h e d istrict court denied CTI A’s request, a

nd CTI A filed a

n interlocutory appeal. W e affirm and remand for further proceeding s.CTI A V

. C I T Y O F B E R K E L E Y 5

I . F actual and Procedural B ackg round

I n May 2015, the City of B e rkeley passed an ordinance requiring cell phone re t a i l ers to disclose information to prospective cell phone purchasers about the f e deral
g overnment’s radio-frequency radiation ex posure g uidelines

r elevant to cell p hone u se. U nder “F inding s and Pu r p o s e , ” the ordinance provided:

A. Requirem e n t s f

or the testing of c ell phones were established by the federal
g overnment 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 a ssumed that they would be c arried a small distance
away from the body
, e. g. , i n a holster or belt clip, which was the common p ractice at that
t i me. Testing of cell phones under t h e s e protocols has g enerally been conducted based

on a n a s s u m ed s ep a r a t i on of 10–15 millimeters.

D. To protect the safety of their consumers, manufacturers r ecomm e nd that their c ell phones be c arried away from the body
, or be used in conjunction with hands-free devices.

E. Consumers are not ge n e r ally aware o f these safety r ecommendations.CTI A V

. C I T Y O F B E R K E L E Y 6

F

. Currently
, it is much mo r e common for cell phones t o b e carried in pockets or other locations rather than h olsters or bel t clips, resulting in much smaller separation distances than the safety

recommendations specify

.

G. Some consumer s may chang e their behavior to better protect themselves and their children if they were aware o f these safety recommendations.

H. W hile the d isclosures and w a rning s that
accompany c ell phones g enerally advise

consumers no t to wear them ag ainst their bodies, e.g ., in pockets, waistbands, etc., these disclosures and warning s a r e o f ten buried in fine p rint, are not written in easily understood lang uag e, o r are accessible only b y looking for the information on the device itself.

I

. The purpose of this Chapter is to ass u re that consume r s have the information they need to m a k e their own choices about the

ex tent and n ature of t h eir ex posure to radiofrequency radiation.

B erkeley Mun. Code § 9.96.010 (2015).

CTI A challeng ed the compelled disclosu r e provision o f the ordin a n c e , arg u ing that it violated the F irst A mendment and was pree m p t e d. One sentence of the compelled disclosure stated, “ T h e potential risk is g reater for children.” The district court held that this sentence was preempted, a nd it issued a preliminary injunction ag ainst enforcement of theCTI A V

. C I T Y O F B E R K E L E Y 7

ordinance. I n December 2015, B e rkeley r e-passed the ordinance without the offending sentence. I n its current f o rm, the compelled disclosure provision provides:

A. A Cell p hone r etailer shall provide to each customer who buy s or l e a ses a Cell phone a notice containi n g the following lang uag e:

The City of B erkeley

requires that y ou be provided the following n o tice:

To assure safety
, the F ederal Government requires that cell p hones meet radiof r equency (RF ) ex posure g uidelines. I f
y ou carry or use y our phone in a pants o r shirt p ocket or tucked into a bra when the phone is ON and connected to a wir e less network, y ou may ex ceed the federal
g uidelines fo r e x posure to RF radiation. Refer to the instructions in y our phone or

user manual for information about how to use y our phone safely

.

B erkeley Mun. Code § 9.96.030(A) (2015).

The o rdinance requires that t h e compelled disclosure be provided either on a p rominently d isplay e d post e r no less than 81⁄2 by 1 1 inches with no smaller than 28-point font, o r

on a handout no less than 5 b y 8 inches with no smaller than 18-point f

ont. The log o of the City o f B erkeley must be placed o n the poster and handout. The ordinance pr o v ides that a cell phone retailer may

include additional information

o n t he poster or handout if it is clear that the additio n alCTI A V

. C I T Y O F B E R K E L E Y 8

information is not pa r t of the compelled disclosure. § 9.96.030(B ) (“The p aper o n which the notice is printed may contain other information in the discretion of the Cell phone retailer, as long as that information is d istinct from the notice lang uag e required by

subdivision (A) of this Section.”).

CTI A c halleng ed the current ordinance, arg uing
, a s it h ad before, that the ordinance violates the F irst Amendment and is preempted. The district court noted that the p reempted
sentence had b een removed f rom the ordinance, d issolved its previously entered injunction, a nd denied CTI A’s request for

a new preliminary injunction. CTI A filed a n i n t e rlocutory appeal.

I I . J urisdiction and Standard of Review

W e have jurisdiction under 28 U.S.C. § 1292. W e r eview

a denial of a preliminary injunction for abuse of d iscretion. Inst. of Cetacean Research v. Sea Shepherd C o nservation Soc’y
, 725 F .3d 940, 9 44 (9th Cir. 2013). “An abuse o f discretion occurs when the district court b ased its ruling on an

erroneous view o f the law or on a clearly erroneous assessment of the e vidence.” Friends of t h e W ild Swan v

. W eber
, 767 F .3d 936, 942 (9t h C i r

. 2014) (citation a nd internal quotation marks o m i t t ed). W e will not reverse the district court where it “g o t the law rig ht,” even if we “ would have arrived at a different result,” so long as the district court did not clearly err in its f a c tual d eterminatio n s

. L a nds Council v. M

c N a i r , 5 3 7 F .3d 981, 9 87 (9th Cir. 2008) (en banc).CTI A V

. C I T Y O F B E R K E L E Y 9

I I I

. Reg u latory

B ackg round

The F ederal Communications Commission (“F CC”) has
reg ulatory jurisdiction o ver transmitting services in the United States. I n 1996, after ex tensive consultation w ith other ag encies, the F C C i ssued a rule desig ned to limit the Specific Absorption Rate (“SAR”) of radio-frequency (“RF ”) radiation from F CC-reg ulate d transmitters, including c ell phones:

1. B y this a c t i on, we are amending our rules to adopt new g uidelines and methods for evaluating the environmental effects of radiofrequency (

RF) radiation from F CC-reg ulated transmitter s. We a

re a dopting Max imum Permissible Ex posure (M P E) limits for electric and mag netic field streng th and power d e n s i t y f

o r t r a n s m i t t e r s o p e r a t i n g a t frequencies from 300 kHz to 100 GHz

. . . W e

are also adoptin g limits for localized ( “partial body”) absorption that will apply to certain portable transmitting devices

. . . W e belie v e that the guidelines we are adopting wi l l protect the public and workers from exposure to potentially harmful RF fields.

2. I n reaching our decision on the adoption of n ew RF ex posure g uidelines we have carefully conside r e d the larg e number o f
comments submitted in this proceeding
, a nd particularly those submitted by the U.S. Environmental Protection Ag ency (EPA), the F ood a nd Drug Administration ( F DA) a nd other federal health and safety ag encies. TheCTI A V

. C I T Y O F B E R K E L E Y 10

new g u idelines we are adopting are ba s ed substantiall y o n the recommendations of those
ag encies, and we b elieve that these guidelines represent a conse n sus view of the federal agencies responsible for m atters relating t o the public safety and health.

I n re Guidelines f

or Evaluating the Environmental E ffects o f Radio-frequency Radiation, 61 F ed. Reg

. 41006, 4 1 0 0 6–07 (Aug . 7, 1996) (emphases added).

Out o f concern f

or the safety of cell phone users, the F CC rejected an industry proposal to ex c lude “low-power devices” such as cell phones from the rule adopting SAR limits:

Mo st commenting parties, including F ederal health and safety

ag encies, support the use of
t h e A N S I /I EEE [ A merican Nati o n a l S t a n d a r d s I nstitute/ I nstitute of Electrical and Electronic Eng ine e r s ] SAR limits for localiz ed (partial body ) ex posure for evaluating low- p ower devices desig n ed to be used in the immediate vicinity of the b o d y

. . . . Therefore, in view of the consensus and the scientific support in the record, we are a dopting the SAR limits for the determination of safe exposure from lowpower devices designed to b e u sed in the immediate vicinity of the body based upon the 1992 ANSI /I EEE g uidelines. . . .

The SAR limi t s w e are adopting will
g enerally apply to por t a b l e devices

. . . that

are d e s ig ned to b e used with a ny part of the radiating structure of t h e device in directCTI A V

. C I T Y O F B E R K E L E Y 11

contact with the body of the user or within 20 c m o f the body under n ormal conditions o f

use. For example, this definition would apply to hand-held cellular telephones.

. . .

I n re Guidelines for Evaluating the Environmental E ffects o f R adio-frequency Radiation (“F CC Guidelines for Radio

frequency Radiation”), F CC 96-326, ¶¶ 62–63(Aug

. 1, 1 996) (emphases added).

The F CC has a better-safe-than-sorry policy with respect to SAR limits:

. . . The intent of our ex posure limits is to provide a cap that both protect s the public based o n scientific consensus and a llows for efficient and practical implementati o n o f wireless services. The pres e nt Commission

ex p osure limit is a “brig h t-line rule.” That is,

so long as ex posure levels are below a

s p e c ified limit value, there is no requiremen t to further reduce ex posure.

. . . Our current RF

ex p osure g uidel i n e s are an ex ample of such
reg ulation, including a si gnificant “safety ” f a ct or, whereby the ex p osure limits are set at

a level on the order of 5 0 times below the level a t which adverse biolog ical effects have been observed in labor a t o ry animals as a result of tissue heating resultin g from RF

ex p osure.

I n r e Reassessment of F CC Radiofrequency Ex posure L imits and Policies, 28 F CC Rcd. 3498, 3582 (Mar. 2 9
, 2013). The F CC recog niz e s that its required marg in of safety is larg e :CTI A V

. C I T Y O F B E R K E L E Y 12

. . . [ E] x ceeding t h e SAR limit d oes not necessarily imply unsafe operation, n o r do lower SAR quantities imply “ safer” operation. The limits were set with a large safety factor
, to b e well below a threshold for unacceptable rises in tissue temperature. As a result,

ex p osure well above the specified SAR limit should not create an unsafe condition. . . . I n sum, using a device ag ainst the body without

a spacer will g e n erally result in actual SAR below the max imum SAR tested; moreover, a

use that possibly r esults in n o n

- compliance with the SAR limit should not be viewed with sig nificantly g reate r concern than compliant

use.

Id. at 3588 (emphasis added).

There are two way s to e n s u r e compliance with SAR limits—reducing the a m o u n t 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 radiat i o n , with the result that the minimum d istance b etween the device and the user to achieve compliance with SAR limits varies somewhat from d evice to device. The F CC r equires that cell p hone u s e r m a nuals contain information that alerts users to the mi n i m um distances appropriate for the device they are using :

Specific information must be inc luded in the ope r a t i ng manuals to enable users to

s e l e ct body-worn accessories that meet the

m i n i m u m t e s t s e

p a r a t i o n d i s t a n c e requirements. Users must be fully informedCTI A V

. C I T Y O F B E R K E L E Y 13

of the operating requirements and restrictions,
to the e x tent that the ty

pical u ser can easily understand the information, to acquire the required body

- worn accessories to maintain compliance. I nstructions on how to place a nd orient a device in body

- w orn accessories, in

ac c ordance with the test results, should also be included i n the user instructions. All supported body-worn a ccessory operating configurations must be clearly disclosed to
users, through conspicuous instructions in the

user gu ide a nd user manual, to ensure unsupported operations are avoided.

I n re Ex posure Procedures and E q uipment Authoriz ation Policies for Mobile and Por table Devices, F CC Office o f Eng ineering and Technolog y L aboratory Division § 4.2.2(d) (Oct. 23, 2015) (“F CC Ex posure Procedures”) ( emphasis added). Compliance with this disclosu r e requirement is a prerequisite f

o r approval o f a transmitting device by the F CC. See id . at § 1.

The following a

re e x amples of cell ph o n e u ser manuals that comply

with the F CC’s disclosure requirement:

Apple:

iPhone’s SAR measurement may ex ceed the FCC ex posure g u idelines f or body -worn operation if pos itioned less than 15 mm (5/8 inch) from the body (e.g

. when car r y i n g iPhone in y o ur pocket).CTI A V

. C I T Y O F B E R K E L E Y 14

S e e iPhone 3G manual, a t 7, http://manuals.info.apple.com / M A N U A L S / 0 / M A 6 1 8 / e n

_ U S / i P h o n e

_ 3 G

_ I m p o r t a n t

_ Product_I nformation_Guide.pdf

Samsung :

I f there is a risk from being ex p osed to radiofrequency energ y (RF ) from cell phones - a nd
at this point we do not know that there is

- it is probably very small. B ut, if y ou a re concerned about avoiding even potential risks, y ou can take a few simple steps to min i m i z e y our RF

ex p osure.

• Reduce the amount of time spent using y our cell phone;

• Use speaker mode or a headset to place more d i stance between y o ur head a nd the c el l phone.

S e e Samsung Common Phone Health and Safety a n d W a rr a n t y G u i d e , a t 8
, h t t p : / / w w w

. s am s u n g.com/us/ L eg al/PHONE-HS_GUI D E_Eng lish.pdf.

L G:

The h ig hest SAR value for this model p h o ne when te s t e d f

or use at the ear is 1.08 W /Kg (1g ) and when worn on the body
, as d e scribed in this user g uide, is 0.95 W /Kg (1g ) ( b o dy

worn measurements differ among phone models, depending upon a vailable accessories and F CC requirements). W hile there may beCTI A V

. C I T Y O F B E R K E L E Y 15

differences between SAR levels of v arious phones and at v a

r ious positions, they all meet t h e g o v e r n m en t r e q u i r e m e n t f o r s a f e

ex p osure. The F CC has g ranted an Equipment Authoriz ation for this model phone with al l reported SAR levels evaluat e d as in

co m p liance with the F CC RF emission
g uidelines. SAR informatio n on this model
p hone is on file with the F CC and can b e found under the Display Grant se c t i o n o f h t t p : / / w ww. f

cc.g ov/oet/ ea / f

c c i d / a f t e r searching on F CC I D Z NF L 1 5G.

See L G Sunrise Us e r Guide, at 93, http://www.lg .com/us/ support/manuals-documents

I V. Discussion

“A p laintiff seeking a preliminary in j u n ction must establish [ 1] that he is likely to succeed on the merits, [ 2] that he is likely to suffer irreparable h arm in the a bsence o f preliminary relief, [ 3] that the balance of equi t i e s tips in his favor, and [ 4] that an inj u n ction is in the public interest.” W inter v

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

“ [ A ] strong er showing of o ne element may offset a weaker showing of another.” Alliance for the W ild Rockies v

. Cottrell
, 632 F .3d 1127, 1131 (9th Cir. 2 011). F or ex ample, “a preliminary injunction could issue where the likelihood o f

success is s u ch t h at ‘serious questions g oing to the merits

were raised a

nd t h e balance of h ardships tips sharply in [ plaintiff’s] favor.’” Id. at 1132 (quoting Clear C h a n nel Outdoor, Inc. v

. City of Los Angeles , 340 F .3d 810, 813 (9th Cir. 2003).CTI A V

. C I T Y O F B E R K E L E Y 16

A. L ikelihood of Success

CTI A makes two merits-base d arg uments ag ainst the B erkeley ordinance. F irst, it arg ues that the ord i n a n c e violates the F irst Amend m en t

. Second, it arg ues that the ordinance is preempted. W e take the arg uments in turn.

1. F irst Amendment

The underly ing disclosure at i s s u e is the disclosure that the F CC c ompels cell phone manufacturers to p rovide to

consumers. However, CTI A has not sued the F CC. Rather, CTI A has sued B erkeley
, challeng ing the disclosure B erkeley compels c e ll phone retailers to p rovide to the same

consumers. The B e r k e l e y ordinance requires cell phone retailers to d isclose, in summary form, the same information
to consumers that the F CC already re q u ires cell phone manufacturers to disclose. The B erk eley disclosure then directs consumers to us e r manuals for more specific information.

a. Central Hudson or Zauderer

The parties ag ree that B e r

keley ’s ordinance is a reg ulation of commercial speech. Central Hudson Gas & Elec. Corp. v

. Pub. S er v

. Comm’n of N.Y

. , 447 U.S. 557, 561 (1980); see Hunt v. C i t

y of L.A.
, 638 F .3d 703, 7 15 (9th Cir. 2011). Howeve r , they disag ree about whether the ordinance’s complianc e w i th the F irst Amendment should be analy z ed under Central H

u dson o r under Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio
, 4 71 U.S. 626 (1985).CTI A V

. C I T Y O F B E R K E L E Y 17

Under Central Hudson
, the g overnment may restrict o r prohibit commercial s p eech that is neither misleading nor connected to unlawful activity
, a s long as the g overnmental interest in r eg ulating the speech is substantial. 477 U.S. at 564. The restriction or prohibition must “directly advance the
g overnment al interest asserted,” and must not be “more

ex tensive than is necessary to serve that interest.” Id. at 566. Under Zauderer as we interpret it today
, the g overnment may compel truthful d isclosure in commercial speech as l o n g a s the compelled disclosure i s “ reasonably related” to a substantial g overnmental interest. Zauderer
, 471 U.S. at 651; see discussion infra

.

W e apply t h e i n termediate scrutiny test mandated b y Central Hudson in commercial speech cases where speech is restricted o r prohibited, on the g round th a t i n such cases interme diate scrutiny appropriately protects the interests o f both the speaker (the seller) and the audience (the p urchaser). But one siz e d oes not fit all in commercial speech cas es

. I n Central Hudson itself, the Supreme Court c a u tioned, “The protection available for particular comm e r cial ex pression
turns on the nature both of t h e e x p r ession and o f the
g overnmental interests served b y it s reg ulation.” Central Hudson , 477 U.S. at 563.

F ive y e ars after Central Hudson
, the Court held that Central Hudson ’s intermediate scrutiny test does not apply to compelled, a s distinct f rom r e s t ricted or prohibited,

c ommercial speech. I n Zauderer
, defendant Z auderer advertised leg al s e rvices to prospective Dalkon Shield plaintiffs in a n umber of Ohio newspapers. The advertisement stated, inter alia
, “‘The ca ses a re h andled on

a conting ent fee basis of the a mount recovered. I f there is no recovery , no leg al fees are owed by our clients.’” Zauderer
,CTI A V

. C I T Y O F B E R K E L E Y 18

471 U .S. at 631. Z a

u derer was discip l i ned under Ohio state bar disciplinary rules on the g rou n d that the advertisement

was “deceptive” within the meaning of the rules, id

. at 633, because it failed to disclose “the c lient’s potential liability for
costs even if her suit were unsuccessful.” Id. at 6 35. The Court noted that the bar disciplinary rules required Z a

uderer
to “include in his advertising purely factual a nd uncontroversial information about the terms under w hich his services will b e available.” Id. at 651. The Court wrote, “Ohio h as not attempted to prevent attorney s from convey ing information to the public; it has only required them to provide

s omewhat more information than they mig ht otherwise b e inclined to present.” I

d. at 6 50. T he Supreme Court declined to apply the Central Hudson test:

B e cause the e x tension o f F irst Amendment protection to commercial speech is justified principally by the value to consumers of the information such speech p rovides, appellant’s consti tutionally protected interest in not providing any particular factual information is minimal.

. . . We re cog niz e that unjustified

o r u n d u l y b u r d e n s o m e d i s c l o s u r e

r e q u i r e m e n t s m i g h t o f f e n d t h e F i r s t Amendment b y chilling protected commercial speech. B ut we hold that an advertiser’s rig hts are ad e q uately protected as long a s disclosure requirement s a

r e r e asonably r elated
to the State’s interest in preventing deception of consumers.

Id. a t 6 5 1 (internal citation omitted). See also M ilavetz, Gallop & Milavetz, P.A. v. United States
, 559 U.S. 229, 253CTI A V

. C I T Y O F B E R K E L E Y 19

(2010) (following Zau d erer and using its “preventing deception” lang

uag e).

b. The Zauderer T est

i. Substantial Governmental I nterest

CTI A contends that the Zauderer ex ception to the g eneral rule of Central H

udson does not a

p p ly in this cas e b e c ause the speech compelled by the B erkeley ordinance does not prevent deception of consumers. This is the fi r s t t ime we have had occasion in this circu i t to squarely address the question whether, in the absence o f a prevention-of-deception rationale, the Zauderer c o mpelled-disclosure test applies. Cf. Video Software Dealers Ass’n v. Schwarzenegger
, 556 F .3d 950, 967 (9th Cir. 2 009) (invalidating compelled di sclosure

on video g ame packag ing
, noting that the disclosure would “arg u ably now convey a false statement that certain conduct is illeg a l when it is n ot, and the State has no leg itimate reason t o force retailers to affix false information on their products”)

. Several o f our sister ci rcuits, however, have answered this question. They have unanimously c o n c l uded that the Zauderer ex ception for compelled speech a p plies

even in circumstances where t he disclosure does not protect ag ainst deceptive speech.

I n American Meat Institute v. U

. S

. Department of Agriculture
, 760 F .3d 1 8 (D.C. Cir. 2014) (en banc), a Department o f Ag riculture reg ulation required identification of the c ountry of orig in on t h e p a c kag ing of meat and meat produc t s

. Id. at 20. The r eg u lation implemented a federal
sta tute requiring country -of-orig in labeling

. See 7 U .S.C. § 1638, 1638a. T he D.C. C i rcuit h eld that Zauderer should
not be r ead to apply only to cases where g overnment-CTI A V

. C I T Y O F B E R K E L E Y 20

compelled speech prevents or corrects deceptive speech. I t noted that o n the fac t s o f both Zauderer and Milavetz ( in which the Court repeated Zauderer ’s “ preventing deception” lang uag e) there had been d eceptive speech: “Given t he sub j e ct of both cases, it was natural for the Court to ex press the rule in such terms. The lang u ag e could have been simply descriptive of the circumstances to w hich the Court a pplied its new rule[ .] ” Am. Meat
, 760 F .3d at 2 2. T he D.C. Circuit concluded, “ The lang uag e with which Zauderer justified its approach

. . . sweeps far more broadly than the interest in remedy ing deception.” Id.

I n National Electrical Manufacturers Associatio n v. Sorrell
, 272 F .3d 1 0 4 (2 d Cir. 2001), a Vermont statute required manufacturers of mercury

- containing products to label their products and packag ing to inform consumers that the products contained mercury a nd instructing them that the products should be disposed of o r rec y c l e d a s haz ardous

w a s t e

. Id. at 107. The Second Circuit held that the compelled disclosure was supported by a “substantial state interest in protecting human h ealth and the environment.” Id.
at 115 n. 6. Citing Zauderer
, the c o u rt recog n iz e d that the compelled disclosure did not “prevent ‘con s u mer confusion

or deception.’” Sorrell
, 272. F .3d at 115. I t nonetheless upheld the disclo sure a s not “inconsistent with the policies underly ing F irst Amendment protection of commercial speech.” I

d

. “[ M ] a n d ated disclosure of accurate, factual, commercial information does n o t offend the core F irst Amendment values of promoting efficient e x chang e of information or protecting individual liberty interests.” Id. at 114; see also N.Y

. St. Rest. A ss’n v. N.Y

. City Bd. of Health
, 556 F .3d 114, 133 (2d Cir. 2009) (“ Zauderer ’s holdi n g was broad enoug h to encompass n onmisleading disclos ure requirements.”); Discount Tobacco City & Lottery, I nc

. v

.CTI A V

. C I T Y O F B E R K E L E Y 21

United States
, 674 F .3d 509, 556–58 (6th Cir. 2 012) (upholding f

ederally r equired health warning s on cig arette packag ing and in cig ar e tte advertisements, rely ing on the Second Circuit’s opini o n i n S orrell ); Pharm. Care Mgmt. Ass’n v. R owe , 429 F .3d 294, 310 n .8 (1st Cir. 2005) (noting that the c ourt had found no cases limiting application of the Zauderer compelled speech test to prevention or correction o f deceptive advert i s ing ); cf. Dwyer v. Cappell
, 762 F .3d 275, 281–8 2 (3d Cir. 2014) (describing but not rely ing on Zauderer ’ s preventing -deception criterion).

W e ag ree with our sister circuits that under Zauderer the
preve n t i o n of consumer deception is not the only
g overnmental interest that may permissibly b e furthered b y compelled commercial speech. W e conclude that any g overnmental interest will suffice so long as it is substantial. I n American Meat
, the D.C. Circuit d e c l ined to decide whether the g overnmental interest must b e substantial, leaving o pen the question w hether a le ss-than-substantial interest m i gh t s u f

fice. See A m. Meat
, 760 F .3d at 23 (“B ecause the interest motivating the 2013 [ country -oforig in] rule is a substantial one, we need not decide whether

a lesser interest could suffice u n der Zauderer .”). W e answer the q uestion avoided in American M eat , holding that Zauderer requires that the compelled disclosure further some subst a n t i a l

— t h a t i s , m o r e t h a n t r i v i a l—g overnmental interest. Central Hudson ex plicitly r equires that a substantial interest be f u rthered by a challeng e d reg ulation prohibiting o r restricting comme r c i al speech, and we see n othing in Zauderer that wo u l d a llow a lesser interest to justify

com p e l l e d commercial speech. T o use the words of the Second Circuit in S

orrell
, the interest at stake must be more than the satisfac t ion of mere “consumer curiosity .” Sorrell
, 272 F .3d a t 115 n.6; see also Am. Meat
, 760 F. 3 d a t 23CTI A V

. C I T Y O F B E R K E L E Y 22

( “ Country -of-orig in information has an historical pedig re e that lifts it well bey ond ‘idle curiosity .’”).

ii. Purely F actual I nformation

T he Court in Zauderer noted that the compell e d disclos u r e i n that case was of “purely factual a nd uncontroversial information.” Zauderer
, 471 U.S. at 651. The Court did not, h owever, require in its constitutional test that the disclosed informa t i on be “purely factual a nd uncontroversial.” Some lower c ourts have recit e d
, without discussion, the “purely factual and uncontroversial” lang uag e

as part of the Zauderer test. S ee, e.g. , Nat’l Ass’n o

f Mfrs. v

. S.E.C.
, 800 F .3d 518, 5 41 (D.C. C i r

. 2015) (“B ut whatever
may b e the complex ities of apply ing the standard in discrete situations, as a matter of precedent, an o blig ation in the commercial sphere t o d i sclose ‘purely factual a nd uncontroversial’ information about a product draws deferential F irst Amendment review.”); Safelite Grp., Inc. v

. Jepsen
, 764 F .3d 258, 2 63 (2d Cir. 2014) (“On a cursory review, our precedent arg uably suppor t s t h e district court’s conclusion tha t this law simply requires disclosure o f accurate, factual informat i o n

. ”); Cent. Illinois Light Co. v

. Citizens Util. Bd.
, 82 7 F. 2d 1169, 1173 (7th Cir. 1987) ( “I n Zauderer
, the Court held that Ohio c o uld con s titutionally require an a ttorney to include in a commercial advertisement, purely f actual and uncontroversial information about the terms under which the attorney ’s services are available.”).

Given that the p u r

p ose of the c ompelled disclosure is to provide accurate fa c t u a l information to the consumer, we ag ree that any compelled disclosure must be “purely factual.” However, “ uncontroversial” in this contex t refers to the factual accuracy o f the comp e l led disclosure, n ot to itsCTI A V

. C I T Y O F B E R K E L E Y 23

subjective impact on the audi e n c e. This is clear from Zauderer itself. The S t a te of Ohio required attorney s to disclose “the client’s potential liabil i t y f or costs e ven if her suit w ere unsuccessful.” Zauderer
, 471 U.S

. at 635. Ohio law permitted attorney s to charg e clients for costs even after advertising and ag r eeing to represent their clients on a conting ency -fee basis a

nd losing the suit. Rec o gn iz ing that the difference b e t w e e n fees a nd costs mig ht not be apparent to prospective c lients, Ohio required attorney s to disclose that

a conting ency fee arrang e ment mig ht still require the client to pay some money to the attorney

. This required disclosure

was factually accurate. That the disclosure may h ave c aused controversy , for ex ample by discourag ing customers from hiring lawy ers wh o offered c onting ency -fee arrang ements because they feare d “ h idden costs” or by harming the reputation of the lawy ers who o ffered such fee arrang e ments, did not a ffect the constitutional analy sis. W hat mattered was that the d isclosure provided accurate factual inform a t i o n to the c onsumer. W e therefore conclude that Zauderer requires only that the information be “purely factual.”

c. Application of Zauderer Test

Under Zauder er , compelled d isclosure of commercial speech complies with the F irst Amendment if the information in t h e d i sclosure is reasonably r elated to a substantial
g overnmental interest and is pu rely f actual. T he question before us is whether the speech compelled by th e Be rkeley ordinance satisfies this test.CTI A V

. C I T Y O F B E R K E L E Y 24

i. Reasonably

Related to a Substantial Governmental I nterest

There is no question that protecting the health and safety of consumers is a substantial g o vernmental interest. See
, e.g. , Posadas de Puerto Rico Assocs. v

. T o urism Co. of Puerto Rico
, 478 U.S. 32 8, 341 (1986) (“[ H] ealth, safety
, a nd welfare c o n stitute[ ] a ‘substantial’ g overnmental interest”). The federal g overnment and B e rkeley have b oth s o u g ht to further that interest. B y a dopting SAR limits on ex posure to RF r adiation, the F CC has furthered the interest of protecting the health and safety o f cell phone users in the United States. I t has done so by

adopting a hig hly protective policy
, setting low SAR limits on RF rad i a t i o n a nd compelling cell phone manufacturers to disclose information to cell phone users that will allow them to a void ex ceeding those limits. B y passing its ordinance, the City of B e rkeley has furthere d t h a t same interest. After finding that cell phone u s e rs are larg ely

unaware of the F CC policy and of the information in their

user manuals, the B erkeley City Council d e c ided to c ompel retailers in B erkeley to provide, in summary form, the same information that the F CC already requires ce l l p h o ne

m a nufacturers to provide to those same consumers, an d t o direct those consumers to their user manuals fo r m o re detailed informat i o n

. S ee J ensen Decl., Ex

. A (survey ) (ref l e c t i ng that a majority of persons survey ed w ere not “aware that the g overnment’s r ad i a t ion tests to assure the safety of c ell p h o n e s a s sume that a cell phone would not be carried ag a inst y our body
, but would instead be held at least 1 to 15 millimeters from y our body ”).

CTI A a rg ues strenuously that r a d i o-frequency radiation f r o m cell phones has not been proven dang erous t o

consumers. L imiting itself to research published when theCTI A V

. C I T Y O F B E R K E L E Y 25

record was made in this case, CTI A is correct in pointing out that there was nothing then before the district court showing that such r adiation had been pr o v en dang erous. B ut this is beside the p o int. The fact that RF radiation from c ell phones had n ot been proven dang e ro u s w as well known to the F CC in 1996 when it adopted SAR limits to RF radiation; w as w ell known in 2013 when it r e f u s e d to ex c lude cell phones from its ru l e a d o p ting SAR limits; and was well known in 2015 when it required cell phone manufacturers to tell consumers how to a v o i d e x ceeding SAR limits. After ex tensive consult ation w ith f

ederal ag encies with ex pertise about the health effects of radio-frequency radiation, the F CC decided, despite the lack of proof of dan ge rousness, that the best policy was to adopt SAR limits with a larg e marg in of safety

.

The F CC concluded t h a t requiring cell phone manufacturers to inform c o nsumers in their users manuals o f SAR limits o n RF radiation, and to tell them how to avoid

ex c e ssive e x posure, furthered the federal g overnment’s interest in p rotecting their health and sa f et y

. The City o f B erkeley concluded that c o nsumers were larg ely u naware of the contents of their users manuals. A g reeing with the F CC tha t t he information about SAR limits and methods o f avoiding ex cessive ex p osure is important, B erkeley requires cell phone retailers to provide some of that same information
to consumers and to direct them to their user manuals for further details. W e are not in a position to disag ree with the conclusions of F CC and B erkeley that t h i s compelled disclosure is “reasonably related” to protection of the health and safety

of consumers.CTI A V

. C I T Y O F B E R K E L E Y 26

ii. Purely F actual

CTI A arg ues that B erkeley ’s compelled disclosure is not “p u rely factual” within the meaning of Zauderer

. W e disag ree.

F or the convenience of the reader, we a gain provide the full tex t of the compelled disclosure:

The City of B erkeley requires that y ou be provided the following n o tice:

To assure safety
, the F ederal Government requires that cell p hones meet radiof r equency (RF ) ex posure g uidelines. I f
y ou carry or use y our phone in a pants o r shirt p ocket or tucked into a bra when the phone is ON and connected to a wir e less network, y ou may ex ceed the federal
g uidelines fo r e x posure to RF radiation. Refer to the instructions in y our phone or

user manual for information about how to use y our phone safely

.

B erkeley Mun. Code § 9.96.030(A) (2015).

The tex t of the c ompelled disclosure is literally true. W e take it sentence by

sentence:

(1) “ To assure s a f

e t y , the F ederal Government requires that cell p hones meet radi o

- frequency (RF ) ex posure g uidelines.” This stateme n t is true. A s recounted above, b e gi nning in 1996 the federal g overnment has set RF

ex p osure g uidelines with which cell phones must comply

.CTI A V

. C I T Y O F B E R K E L E Y 27

(2) “I f y ou carry o r use y our cell phone in a pants o r shirt pocket or tucked into a bra when t h e phone is ON a nd connected to a wireless network, y ou may ex ceed the federal
g uidelines for ex posure to RF radiation.” This statement is also true. T he F CC has establishe d S A R limits for RF radiation, and h as concluded tha t m a i ntaining a c ertain separation between a c ell phone and the user’s body protect consumers from ex ceeding these limits.

(3) “Refer to th e instructions in y our phone or user manual for information about how to u se y our phone safely

. ” This sentence is an in s truction rather than a direct f actual

s t a t e ment. However, it clearly implies a factual statement that “ information about h o w t o u se y o ur phone safely ” in compliance with the FCC’s RF “ex posure g uidelines” “to

assure safety
, ” may b e found either in a cell phone or user manual. This implied statement, too, is true.

W e recog niz e , of course, that a statement may be literally
true but nonetheless misleading and, in t h a t sense, untrue. That is what CTI A arg ues h ere. C T I A a r gues that the compelled disclosure is inflammatory and mislead i n g, a nd that it is therefore not “ p urely f ac tual.” CTI A bases its
arg ument solely

on the tex t of the ordinance.

CTI A arg ues that “[ t] h e Ordinance requires an inflamm a t o ry warning about unfounded safety risks”; that “[ t] he Ordinanc e clearly and deliberately sug g e sts that the federal RF energ y testing g u i d e line (the SAR limit) is the demarcation p oint of ‘safety ’ for cell phones, such that ‘ex posure’ to RF energ y a b ove that limit creates a s a fety haz a rd”; and that “[ t] he Ordinance is misleading for the additiona l re ason that it uses the inflammatory term ‘radiation,’ w hich is f

raug ht wi t h neg ative associations, inCTI A V

. C I T Y O F B E R K E L E Y 28

order to stoke consumer anx iety

. ” CT I A a r gues further that the ph rase “RF radiation” is “fraught with neg ative associations,” that i t i s used in the compelled disclosure “in order to stoke consumer anx iety ,” and that it is therefore not “purely factual.”

W e read the tex t differently

. T h e fi r st sentence tells consumers that cell phones are required to meet federal “RF

ex p osure g uidelines” in order “[ t] o assure safety .” F ar from inflammatory
, this statement is larg ely reassuring

. I t assures

consumers that the cell phones they are a bout to buy or lease meet federally imposed safety g uidelines.

The second sentence tells consumers what to do in order
to avoid ex ceeding federal g uidelines. Thi s s t a t e ment may not be reassuring
, but it is hardly inflammatory

. I t provides in summary f

orm information that t h e F CC has concluded that consumers should know in order to ensure t h eir safety

. I n d e ed, the F CC specifi c a l l y r e q u i r e s c e l l p h o n e manufacturers to provide this information to consumers. See

“ FC C Ex p o s u r e P ro c e d u r e s ” § 4.2.2(d) (“ S p e c i fi c information must be included in the operating ma n u a ls to enable users to select body

- w orn ac cessories that meet the minimum test separation d istance r equirements.

. . . All supported body -worn accessory opera t i ng config u rations
must b e clearly disclo s ed to u sers, through c onspicuous instructions in the user guide a nd user manual
, t o ensure unsupported operations are avoided.”) (emphasis added).

The third senten c e t ells c o nsumers to consult their user manuals to obtain further information—that is, to obtain the
very information the F CC requires cell phone manufacturers to provide in “conspicuous instructions” in user manuals.CTI A V

. C I T Y O F B E R K E L E Y 29

F urther, the phrase “RF radia t i o n,” used in the second sentence, is precisely the phrase the F CC has used, beg inning in 1996, to refer to radio-frequency emissions f r o m c ell phones. See F CC Guidelines f or Radio frequency Radiation
at ¶ 1, supra a t 9 (“radio-frequency (RF ) radiation”). W e do
not fault B e rkeley for using the term “RF radiation” when referring to cell phone em i s s i o n s w hen it is not only the technically correct term, but a lso the term the F CC itself u ses to refer to such emissions.

F inally
, we note that the B erkeley o rdinance allows a c ell phone r e tailer to add to the compelled d isclosure. I f a retailer is concerned, as CTI A contends it should be, t h at the term

“ R F radiation” is inflammatory and misleading
, the r etail e r may add to the compelled disclosure a ny further statement it

sees fit to add. See § 9.96.030(B ) (“The paper on which the notice is printed may contain oth e r information in the discretion of the Cell phone r etailer [

. ] ” )

. CTI A has put nothing in the record to indicate that any B erkeley retailer has felt it ne c e ssary , o r even useful, to add ex planatory information a

bout the nature of RF r adiation. Nor h as CTI A presented any evidence in the district court sho w ing h ow B er k e ley c onsumers have u n derstood the compelled disclosure, or evidenc e showing that sales of cell phones in B erkeley were, or are likely to b e, depressed as a result of the compelled disclosure.

d. L ikelihood of Success

B a sed on the foreg oing
, w e conclude that CTI A has little likeli h o od of success on its F irst Amendment claim that the disclosure c ompelled by the Be r k eley ordinance is unconstititutional.CTI A V

. C I T Y O F B E R K E L E Y 30

2. Preemption

a . Conflict Preemption

“F ederal p reemption occurs when: (1) Cong r ess enacts a statute that e x plicitly p reempts state law; (2) state law actually conflicts with f

ederal law; or (3) federal law occupies

a leg islative field to such an ex tent that it is reasonable to conclude that Cong ress left no room for state reg ulation in the leg islative field.” Chae v. SLM Corp.
, 593 F .3d 936, 941 (9th Cir. 2010) ( internal quotat i o n marks omitted). CTI A contends that B erk eley ’s compelled disclosure is invalid because of conflict preemption.

“Conflict preemption is implicit preemption of state law that occurs w here there is an actual conflict between state a nd federal law.” McClellan v. I-Flow Corp.
, 776 F .3d 1035, 1039 (9th Cir. 2015) ( citations and intern a l quotation marks omitted). “W hen Cong ress c harg es an ag ency with b alancing competing objectives, it intends the ag ency to use its reasoned judg ment to w eig h the relevant c onsiderations and determine how best to prioritiz e those objectives. Allowing a state law
to impose a different standard [ impermissibly ] p ermits a rebalancing o f those objective s .” Farina v. Nokia Inc.
, 625 F

. 3d 97, 123 (3d Cir. 2010). Conflict preemption arises either w hen “ c o mpliance with b oth federal a nd state reg ulations is a phy sical impossibility

. . . or w h e n s t ate law stands a s a

n obstacle to the accomplishment and ex e cution o f the full purposes a

nd o bjectives of Cong ress.” M cC l e l lan
, 776 F .3d at 1039 ( c itations and internal quotation marks omitted). W e are concerned here with “ obstacle” preemption. CTI A contends that B erkeley ’s compelled disclosure creates

an impermissible o bstacle by requiring more disclosure than is required by the F CC. S e e C r osby v. Nat’l Foreign TradeCTI A V

. C I T Y O F B E R K E L E Y 31

Council
, 530 U .S. 3 6 3, 373 (2000) ( finding preemption where

a challeng e d state law “stands as an obstacle to the accomplishment a n d e x ecution of the full purposes a nd objectives of Cong ress.”) (internal quotation marks omitted).

b. Telecommunications Act of 1996

“Preemption analy sis ‘start[ s] with the a s s u m ption that
t he historic p olice powers of the States were n o t t o b e superseded by the F ederal Act unless that was the clear a nd manifest p urpose of Cong r ess.’ ” City of Columbus v

. Ours Garage and W

recker Serv., Inc.
, 536 U.S. 424, 438 (quoting M edtronic, Inc. v

. Lohr
, 518 U.S. 470, 485 (199 6 ) ). “Cong ressional intent, therefore, is the ultimate touchstone o f preemption analy sis.” Engin e Mfrs. A ss’n v. S. Coast Air Quality Mgmt. Dist.
, 498 F .3d 1 0 3 1
, 1 040 (9th Cir. 2 007) (citing Tocher v. City of S

anta Ana
, 219 F .3d 1040, 1045 (9th Cir. 2000)).

The F CC’s org a

nic statute is the Telecommunicat ions A ct of 1996 (“the Act”), 110 Stat. 5 6. L eg islative hearing s, a s well as the Act itself, show that Cong ress desired “uniform, consistent requirements, with a dequate safeg uards of public health and safety ” in nationwide telecom services. See H.R. Rep. No. 1 04-204, 94 (1996). The Act deleg ated to the F CC the authori ty “to ‘ make e f fective rules reg a

rding the environmental effects of [ RF ] emissions.’” Farina v. Nokia In c

. , 6 2 5 F .3d 97, 106 (3d Cir. 2010) (quoting 110 Stat. 56, 152). Sp ec i f

i cally
, “the F CC was tasked not only with protecting the health and safety of th e p ublic, but a lso with ensuring the r apid developm e n t o f a n efficient and u niform network[ .] Id. at 125

. T h i s l ed to the creation of the
reg ulatory

measures described supra

.CTI A V

. C I T Y O F B E R K E L E Y 32

The centerpiece of CTI A’s arg u ment is that the F CC does
not compel cell phone manufacturers to provide information
to consumers abou t S A R limits o n RF radiation ex posure. CTI A did not make this arg ument in the district court. I ndeed, it conceded in its briefing in the district court that the F CC did so require. See
, e.g. , Plaintiff’s Reply in Support o f Motion f or a Preliminary I n

j u n c t ion at 12 (“The manner in which B erkele y re quires CTI A’s members to deliver B erkeley ’s messag e—at the point of sale, rather than in a user manual—also disting uishes the Ordinanc e f r o m the FCC’s requirements .”) (emphasis added). CTI A made th i s arg ument for t h e first time in its Reply B rief in this court, and it repeated the arg

ument during oral arg

u ment to our panel.

B e cause CTI A conceded the p oint in the district court a nd made its arg ument to the contrary only bef ore us (and even then on l y i n its Reply B rief and during oral arg ument), it is waived. S

ee Conn. Gen. Life Ins. Co. v. N e w I mages of Beverly H

ills
, 321 F .3d 878, 882 (9th Cir. 2003) (“This issue is raised for the first time on appeal, and we therefo r e t r e at the issue as waived.”); United States v. Bohn
, 9 56 F .2d 208, 20 9 ( 9 t h Cir. 1992) ( “we ordinarily decline to consider
arg uments raised for the first time in a reply brief”). B u t we note that if we were to consider CTI A’s arg ument o n the merits, w e would r eject i t

. Beg inning in October 2015, the F CC required c ell p hone manufacturers to inform consumers of minimum separation distances in user manuals. W e quoted the relevant passag e, supra at 12–13. F or the convenience o f the reader, we repeat much of the passag e here:

Specific information must b e included in the operating manuals to enable users to select body -worn accessories t hat meet the minimum test sep a r a t i o n d i s tanceCTI A V

. C I T Y O F B E R K E L E Y 33

requirements. Users m ust be fully informed o f the operating requirements and restrictions, to the ex tent that the ty

pical user can easily understand th i s information, to acquire the
req uired body -worn accessories to maintain compliance.

. . . All supp o r ted body -worn accessory operating con fig urations must be

c l e a r l y d i s c l o s e d t o u s e r s , t h r o u g h conspicuous instructions in the user g uide a nd

user manual, to e n sure unsupport e d o p e r a tions are avoided.

I n re Ex posure Procedures and E q uipment Authoriz ation Policies for Mobi le and Portable Devices, F CC Office o f Eng ineering and Technolog y L aboratory

Division § 4.2.2(d)
at 11 (Oct. 23, 2015) (“F CC Ex posure Procedures”) (emphases added). The F CC document containing t his lang uag e “is o ne of a collection of gu i d a n c e publications referred to as the published RF e xposu r e K

D B procedures

. ” Id. § 1 at 1 (emphasis in orig inal). The d ocument specifies that “[ a] pplications for equipment authoriz at i o n m ust meet all the requirements d e scribed in the applica b le published RF
exp o s u r e K

D B procedures .” Id. § 2 at 3 (emphasis in orig inal). That is
, in order for a cell phone to be authoriz ed by the F CC for consumer use, it must satisfy the requirements outlined in F CC Ex posure Procedures.

c. L ikelihood of Success

Given the F CC’s requirement that cell p hone manufacturers must inform consumers of “ m i nimum test separation distance requirements,” and must “clear l y disclose[ ] ” accessory o p erating config urations “throug h

c o n s picuous instructions in the user g u ide and user manu a l
,CTI A V

. C I T Y O F B E R K E L E Y 34

to ensure unsuppo r t ed operations are avoided,” we see little likeli h ood of success b ased on conflict preemption. Berkeley ’s compelled d isclosure does no more than to al er t

consumers to the safety disclosures that the F CC requires, a nd
to direct consumers to federally compelled instructio n s i n their user manuals providing specific information about h ow to avoid ex cessive ex posure. F ar fro m conflicting with federal law and policy
, the B erkeley ordinance complements and reinforces it.

B . I r

reparable Harm

I rreparable harm is relatively easy to establish in a F irst Amendment case. “[ A] p arty seekin g preliminary injunctive relief in a F irst Amendment contex t can establish irreparable injury

. . . by d emonstrating the e x istence of a colorable F irst Amendment claim.” Sammartano v. F irst J udicial District Court
, 303 F

. 3d 959, 973 ( 9th Cir. 2002) (citation o m i t t e d ), abrogated on other g

rounds by W

inter v

. N a t ural Res. Def. Council
., 555 U.S. 7, 22 (2008). W e n o n e t heless conclude that it has not been established here.

“[ T] he loss of F irst Am e n dment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury .” Id. (citing Elrod v. B urns , 427 U.S. 347, 373 ( 1976)). B ut the m e r e assertion o f F irst A mendment rig hts d oes not automatically require a finding of irreparable injury

. I t is the “purposeful unconstitutio n a l suppression o f speech [ that] constitutes irr e p arable harm for preliminary injunction p urposes.” Goldie’s Bookstore v. Super i o r Ct.
, 739 F .2d 466, 472 (9th Cir

. 1 9 8 4). W e have already concluded under the Zauder e r test f or c ompelled disclosure that, on the record before us, B erkeley ’s ordinance complies with the F irst Amendment. Sammartano
, 303 F .3d at 973–74CTI A V

. C I T Y O F B E R K E L E Y 35

(“[ T] he test for g ranting a p reliminary i njunction is ‘a continuum in which the required show i n g of harm varies inversely with the r e q

uired showing of meritori o u s n ess,’ when the harm claimed is a serious infring e ment on core

ex p ressive freedoms, a plainti f f i s entitled to an injunction

even on a lesser showing o f meritoriousness.”). F urther, there is nothing in the record showing ha rm to CTI A or its members throug h actual or threatened reduction in sales o f cell phones cause d by the disclosure compelled by the ordinance.

W e conclude similarly that there has been no irreparable harm based on preemption.

C. B alance of the Equities

A c ourt must “balance the interes t s of all parties a nd weig h the damag e to each” in determining the balance of the equities. Stormans, Inc. v

. Selecky
, 586 F .3d 1109, 1138 (9th Cir. 2009).

CTI A asserts that implementing the ordinance will cause its members substantial e conomic harm and violate their F irst Amendment r ig hts. W e have c oncluded that CTI A’s F irst Amendment claim is u nlikely to succ e ed, and the record
prov i d es no e vidence to support a finding of e conomic o r reputational harm to c ell p hone retailers. Ho w e v er, CTI A relies on P a c i

fic Gas & Electric Co. v. Public Utilities Commission of California
, 475 U.S. 1, 15–16 (1986), to a rg ue that, w hile disclosures may not violate the F irst Amendment, the ordinanc e imposes an “ u n due burden” on CTI A ’s members because it creates sig n ificant “pressure to respond,”

a n d t hat this pressure is “antithetical to the free discussio n that th e F irst Amendment seeks to foster.” There is noCTI A V

. C I T Y O F B E R K E L E Y 36

s h o w ing of any such pressure. The ordinance requir e s CTI A’s members to inform their customers that the F CC has promulg a ted reg ulations concerning RF emiss i ons and to

a dvise customers to refer to their user manuals f o r m o r e information. To the ex t e n t that a cell phone retailer is dissatisfied with the disclosure a s written, it can a p p e nd additional disclosures. B e rkeley Ordinance, § 9.96

. 0 3 0(C) (May 26, 2015). CTI A has put nothing in the record showing that any B e rkeley cell phone r etailer has felt pressured, or has
soug h t to take advantag e of the provision of the ordinance allowing it to make any additional disclosure it desires. See also Milavetz
, 559 U.S. at 2 50 (“not p reventing

. . . [ the]
convey [ ance] of any additional i n f o r mation” is one of the essential features of a Zauderer d isclosure).

B e rkeley p roperly asserts that it has a substantial interest in prot e c t i n g the health of its citiz ens. CTI A, on the other hand, h as f

ailed to demonstrate any h a r d ship tipping the balance in its favor. W e conclude that the b alance of the equities favors B erkeley

.

D. The Public I nterest

“The public interest inquiry prima r i l y a d dresses impact on non-parties rather than parties. I t embodie s the Supreme Court’s direction that[
, ] in ex ercising their sound discretion,
courts o f eq u ity should p ay particular reg ard for the public
consequences in employ ing the ex traordinary remedy o f injunction.” Bernhardt v. Los Angeles Cty.
, 339 F.3d 920, 931–32 (9th Cir. 2003) (internal q uotation marks and citation omitted) ( citing W

einberger v. Romero-Barcelo
, 4 5 6 U.S. 305, 312 (1982)). W e ag ree with the district court that an injunction would injure the public in terest in having a free flow of accurate information.CTI A V

. C I T Y O F B E R K E L E Y 37

“Protection of the robust and free flow of ac c u r ate information is the principal F irst Amendment justification for protecting c ommercial s p e ech, and requiring disclosure o f
tr u t h ful information promotes that g oal.” Nat’l Elec. Mfrs. Ass’n
, 272 F .3d at 114. The d istrict court found that wh i l e “‘accurate and balanced disclosures reg arding RF energ y a re already available ’

. . . there is evidence that the public does not know about those disclosures.” (citing J ensen Decl., Ex

. A (survey )). B ecause “disclosure furthers, rather than h inders

. . . the efficiency of the ‘marketplace o f ideas,’” we hold that the ordinance is in the public interest and that an injunction

w o u ld harm that interest. See Nat’l Elec. Mfrs. Ass’ n , 272 F .3d at 114.

Conclusion

Our assessment of the probability of CTI A’s success on the merits, the likelihood of irreparable harm, the balance of the hardships, and the p ublic interest lead us to c onclude that the district court did not abuse its d i s c retion in deny ing preliminary injunctive relief to CTI A. Accor ding ly
, the district court’s order deny ing such relief is

AF F IRMED.CTI A V

. C I T Y O F B E R K E L E Y 38

F RI EDL A

ND, Circuit J udg e, dissenting in part:

The majority interprets the sentences in B erkeley ’s forced disclosure statement on e at a time and holds that each is “literally true.” B ut c onsumers w o u l d n ot read those
sentences in isolation the way the majority d o es. Taken as a whole, the most natural reading of the disclosu r e w a r ns that
carry ing a c ell phone in one’s pocket is unsafe. Y e t B erkeley has n ot attempted to arg ue, let alone to prove, that messag e is
true.

I t is clear that the F irst Amend m ent prevents the
g overnment from requiring businesses to make false o r misleading statements about their own produc t s

. S ee V ideo Software Dealers Ass’n v. Schwarzenegger
, 556 F .3d 950, 967 (9th Cir. 2009), aff’d sub nom. B rown v. Entm’t Merchs. Ass’n
, 564 U.S. 786 (2011). B ecause—at least on the current

r ecord—that is what B erkeley ’s o rdinance would do, I believe the ordinance likely violates the F irst Amendm e n t a nd therefore should have been preliminarily enjoined. 1 See Klein

v. City o f S an Clemente
, 584 F

. 3d 1196, 1 2 0 7 –08 ( 9 th Cir. 2009) (“B oth this court and the S u p r eme Court have repeatedly held that ‘[ t] he loss of F irst Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injur y

. ’ ” (quoting E lrod v. Burns
, 427 U.S. 347, 373 (1976))).

I

B e rkeley ’s ordin a n c e requires stores selling c ell phones to provide a disclosure stating :

1 I ag ree w ith th e m aj o rity ’ s p reem p tio n an aly sis s o d issen t on ly f ro m sectio n s IV.A .1 ., IV.B ., IV.C., an d IV.D. o f th e m aj o rity

o p in io n

.CTI A V

. C I T Y O F B E R K E L E Y 39

To assure safety
, the F ederal Government requires that cell phones meet radio-frequency (RF ) ex posure g uidelines. I f y ou carry or use y our phone in a pants or shirt pocket or tucked into a b ra w hen the phone is ON a nd connected to a wireless network, y ou may

ex c ee d the federal g uidelines for ex p osure to RF r adiation. Refer to the instructions in y our phone or use manua l for information about how to use y our phone safely

.

B erkeley Mun. Code § 9.96.030(A) (2015).

The majo r i t y parses these sentences individually a nd concludes that each is “ literally true.” I n m y view, this

a p proach misses the forest for the trees. On its fa c e , t h e disclos ure beg ins and ends with references to safety
, plainly
convey ing that the intervening lang uag e describes something unsafe. I ndeed, the disclosure directs consumers to their user manuals for instructions on “how to use y our phone safely

. ” The messag e of the disclosure as a whole is clear: carry ing a phone “ in a p ants or shirt pocket or tucked into a bra” is not safe. Yet that implication is a problem for B erkeley because it has n ot o ffered a n y evidence that carry ing a cell phone in

a pocket is in fact unsafe. I nstead, it has ex pressly d enied that the required disclosure convey s that messag e. I

disag ree.

B e r keley insists the ordinance “rests ex clusively upon

ex isting F CC reg u lations.” B ut those reg ulations communicate something far d ifferent than does the o r d i n a n c e

. The F CC g uidelines make clear that they are des i gn e d to incorporate a many -fold safety factor, suc h that ex posure to radiation in ex cess of the g u ideline level is considered by the F CC to be safe:CTI A V

. C I T Y O F B E R K E L E Y 40

Our current RF e x p o sure g u idelines

. . . include[ e] a sig nificant “safety ” f actor, whereby the ex posure limits are set at a level

on the order o f 50 times below the level at whi c h adverse biolog ical effects have been observed in laboratory animals a s a result o f tissue heating resultin g from RF ex posure. T h is “safety

” factor can well accommodate a variety of variables such as different phy sical characteristics and individual s e nsitivities— and e ven the potential f

or ex posures to occur in ex cess of our limits without posing a health hazard to humans

.

I n r e Reassessment of F CC Radiofrequency E x posure L imits and Policies, 28 F CC Rcd. 3 498, 3582 (Mar. 29, 2 013) (emphasis added). There is thus no evide n c e in the record that the messag e convey e d by the ordinance is true. 2

2 B ecau se ev en

u n der Za ud

erer v. Office o

f Discip lin a ry Co u nsel o

f S u p reme C o u r t o f Oh io
, 4 7 1 U.S. 6 2 6 (1 9 8 5 ), an y f orced d i sclo su

re statem en t m

u st b e tru th f

u l, s ee id

. at 6 5 1
, I d o n o t th in k th a t an y d iscu ssio n o f Z

a u d erer is ap p ro p riate in t

h is case. If n ev erth eless I w ere to co n sid er th e ex ten t o f Z au d erer ’ s ap p licab ility , as th e m aj o rity d o es, I

w o ul d b e i n clin ed to co n clu d e th at Z a u d erer ap p lies o n ly w

h en th e g o v ern m en t co m

p els a t ru th f u l d isclo su

re to co u n ter a f

alse o r m islead in g ad v ertisem en t . Giv en th at th e d isclo su re in Za u d

erer itself p rev en ted an ad v ertisem en t f

ro m b ein g m isl e a d i n g , I h av e serio u s d o u b t th at th e Su p rem e Co u rt in ten d ed th e Za ud ere r t e s t to ap p ly in b ro ad er circu m s tan ces. S

ee i d

. ( “[W ]e h old th at an ad v ertiser’ s rig h ts are ad eq u ately p ro tected as lo n g as d isclo su re req u irem en ts a r e r easo n ab ly related to th e State’s i n t erest in p rev en t in g decep tio n o f co n su m ers.”). T h e m aj o rity ’ s co n trary co n clu sio n also seem s to m e to b e i n ten sio n w i th

o u r d ecisio n in V

i d e o S o ftwa re Dea lers
, w

h ich treated Za u d

erer as ap p ly in g o n ly in th e co n tex t o f d isclo su res aim ed at co m

b attin g o th erw ise

m islead i n g ad v ertisin g

. S ee 5 56 F.3 d at 9 67 (“ [T ]h e lab elin g req u irem en tCTI A V

. C I T Y O F B E R K E L E Y 41

II

The F irst Amendment c learly does not p ermit the
g overnment to force businesses to make false or mislea ding
statements about their products. I n Video Software Dealers
, we c onsidered a challeng e to a California law requir i n g t h at “violent” video g ames be labeled with a sticker that said “18” and p reventing t h e s a l e o r rental of violent video g ames to minors. 556 F. 3 d a t 953–54. After striking down the law’s sale a nd rental prohibition, we c o n c l u ded that c ontinuing to require t h e l a b el “ 1 8” “would a rg uably

. . . convey a false statement” that minors could not buy or rent the video g ame, and was therefore u nconstitutional. I d. at 965–67. The same principle applies here: the F irst A mendment prohibits B erkeley from compelling retailers to communicate a misleading messag e

. I would thus hold that CTI A is likely to succeed on the merits of its F irst Amendment challeng e.

There a re d o wnsides to false, m i sleading
, o r unsubstantiated product warning s. Psy ch olog ical and other

s o c ial science research sug g ests that overuse may ca u s e people to pay less a ttention to warning s g enerally : “ [ A] s the number o f warning s g r ows and the prevalence of warning s about low level risks increases, p e o ple wil l i n creasing ly ig nore or disreg ar d t hem.” J

. Paul F rantz et al., Potential Problems Associated with Overusing W arnings
, Proceeding s of the Human F actors & Erg onomics Soc’y 43 r d A n n

. Meeting 916, 916 ( 1999). Relatedly
, “[ w] arning s about very minor risks or risks that are ex t r emely remote have raised

concerns about n e g ative effects on the believability a nd

f ails Za u d e r e r ’ s ratio n al relatio n s h ip test, w h ich ask s i f th e ‘ d i sclo su re req u irem en ts are reaso n a bly related to th e State’ s in terest in p rev en tin g d ecep t io n o f cu sto m ers.’ ” (q u o tin g Za u d erer , 4 7 1 U.S. at 6 5 1 )).CTI A V

. C I T Y O F B E R K E L E Y 42

credibility of warning s.

. . . I n essence, such warning s represent ap p a r ent false alarms as they appear to b e ‘ cry ing wolf.’” I d. at 918; see also David W. Stewart & I ng r id M. Martin, Intended and Unintended Consequences of W arning Messages: A Review and Synt h esis of E mpirical Research
, 13 J

. Pub. Pol’y & Marketing 1, 7 (1994). I f B erkeley w ants consumers to listen to its warning s, it should stay quiet until it is prepared to present evidence of a wolf.