Cell phone industry sues Berkeley over warning-labels law 
 
 John DeCarli of San Francisco talks on his cell phone as he rests at the Ferry Building, Tuesday Feb. 22, 2011, in San Francisco, Calif. A new study published in JAMA shows that cell phones do in fact have an affect on brain activity, but it's unclear if it's a dangerous effect or not. less John DeCarli of San Francisco talks on his cell phone as he rests at the Ferry Building, Tuesday Feb. 22, 2011, in San Francisco, Calif. A new study published in JAMA shows that cell phones do in fact have an ... more Photo: Lacy Atkins, The Chronicle Photo: Lacy Atkins, The Chronicle Image 1 of / 1 Caption Close Cell phone industry sues Berkeley over warning-labels law 1 / 1 Back to Gallery 
 
 The cell-phone industry, leery of any attempt to link its products to radiation, sued Berkeley on Monday over a new ordinance requiring consumers to be warned that carrying a switched-on phone in their pockets or bra might exceed federal safety standards. 
 
 The ordinance violates free speech by compelling sellers to convey a message they disagree with, and one that is “inaccurate, misleading, and controversial,” said the suit, filed in federal court by CTIA - The Wireless Association. 
 
 The trade group successfully used a similar argument against a San Francisco ordinance that would have required cell-phone retailers to tell customers the phones could expose them to dangerous levels of radiation, classified as possibly cancer-causing by the World Health Organization. The city dropped the ordinance in 2013 after a federal appeals court barred its enforcement. 
 
 Berkeley’s ordinance, scheduled to take effect July 1, is more limited. It requires sellers to tell customers that the federal government sets radio-frequency radiation exposure guidelines for cell phones, but that a user may be exposed at levels exceeding those guidelines by carrying the device in a pants or shirt pocket or tucked into a bra when it is switched on and connected to a wireless network. “This potential risk is greater for children,” the notice is required to state. 
 
 The lawsuit said the instructions falsely imply that the federal guidelines are safety limits. The Federal Communications Commission has stated, based on “overwhelming” scientific authority, that exceeding its radiation-exposure guidelines “does not pose a safety concern,” because the standards are set 50 times lower than the danger levels, CTIA’s lawyers said. 
 
 “According to the federal government, no cell-phone model approved for sale in the United States creates a safety concern,” the suit said. 
 
 Berkeley officials said they were confident the ordinance would be upheld. Councilman Max Anderson, the measure’s lead sponsor, said the warning language was taken directly from manufacturers’ statements in product manuals. Harvard Law Professor Lawrence Lessig, helped to draft the ordinance and has agreed to defend it without charge. 
 
 “I believe Berkeley has a right to assure its residents know of the existing safety recommendations,” Lessig said by e-mail. 
 
 Bob Egelko is a San Francisco Chronicle staff writer. E-mail: begelko@sfchronicle.com Twitter: @egelko ||||| A trade group representing the wireless industry is asking a federal judge to stop Berkeley from enforcing an ordinance requiring warning labels about radiation on cellphones sold in the city. 
 
 CTIA–the Wireless Assn. claims in a federal suit filed Monday that the city is violating companies’ 1st amendment rights by forcing it to disseminate an opinion it says is false. 
 
 The warning is “misleading, controversial, and government-crafted,” and will “stoke fear in consumers about the dangers of cell phones,” the trade group argued in its complaint. 
 
 The Berkeley City Council last month unanimously approved a city ordinance requiring that a notice on radio frequency exposure be placed on cellphones that said, in part, “Don’t carry or use your phone in a pants or shirt pocket or tucked into a bra when the phone is turned on and connected to a wireless network.” 
 
 By doing so, the label says, a consumer could have exposure to radio frequencies at a level that exceeds federal guidelines. The guidelines on how far away to keep a cellphone from a person’s body are already required to come with a phone by the Federal Communications Commission, CTIA said. 
 
 In a City Council agenda item from November, Berkeley’s ordinance is explained as merely bringing the government’s guidelines front and center for the consumer and putting it in language a customer can understand. 
 
 The ordinance also conflicts with federal regulations, the lawsuit alleges. A Berkeley official said the city does not comment on pending litigation. 
 
 This isn’t the first time the wireless trade group has taken a city to federal court over a local ordinance. In 2011, the group sued San Francisco after the city required that a fact sheet on the potential health risks of cellphones be disseminated with new purchases. The law was ultimately dropped. 
 
 For breaking California news, follow @JosephSerna. 
 
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 CTIA - The Wireless Association on Monday asked a U.S. federal court in California to strike the ordinance down, on the grounds that it violates the First Amendment and preempts federal law. 
 
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 “Berkeley’s Ordinance violates the First Amendment because it will require CTIA’s members to convey a message to which they object, and which is factually inaccurate, misleading, and controversial,” lawyers for the group wrote in a lawsuit in a federal court in the Northern District of California. 
 
 The Berkeley City Council approved the ordinance in May, and it is slated to take effect on June 25. It would require retailers to pass along information about radio frequency (RF) exposure when a customer buys a phone. 
 
 Those warnings would not explicitly reference any harm, but would note that the federal government sets guidelines on exposure, which can be exceeded if a person carries their phone close to their body while it is connected to wi-fi. 
 
 “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. This potential risk is greater for children. Refer to the instructions in your phone or user manual for information about how to use your phone safely,” according to the warning that would have to be handed out to customers. 
 
 The wireless industry claims the warning gives off an inaccurate impression of harm. It argues that forcing retailers to hand out information that they disagree with would violate their First Amendment rights. 
 
 “The Ordinance is designed to have the effect, and has the effect, of conveying to an average consumer that exposure to RF energy from a cell phone in excess of the federal guideline creates a safety concern,” according to the trade group. 
 
 The trade group successfully killed a similar 2010 law in San Francisco. But advocates of the Berkeley ordinance say the current proposal does not go as far as San Fransisco. They also note that the decision in the San Francisco case is unpublished and does not have jurisdiction over the Berkeley ordinance. 
 
 The government says it does not know if there is risk from exposure to radio frequency emitted by mobile phones and research is ongoing. The FCC notes there is currently no scientific evidence that overexposure can cause cancer, headaches, dizziness or memory loss. 
 
 If there are risks, the FCC predicts they are small. The amount of radio frequency to be absorbed into the head of a person using a mobile phone is at called the Specific Absorption Rate. The FCC sets that limit at 1.6 watts per kilogram. 
 
 The Government Accountability Office in 2012 found that those limits might not reflect the latest research and may not address exposure limits to the body, for example, when someone carries their phone in their pocket while using headphones.
– Last month, the city council in Berkeley, Calif., unanimously approved a measure that would require all cellphones sold within the city to come with a warning notice that informs consumers about radiation exposure. But a wireless industry trade group is now suing the city, saying that the warning violates sellers' First Amendment rights by forcing them to distribute a message they don't believe, the Los Angeles Times reports. The notice is "misleading, controversial, and government-crafted," reads the federal complaint filed Monday by CTIA–the Wireless Association, the Hill reports. The group adds that the warning, set to go into effect June 25, gives off an erroneous message that will "stoke fear in consumers about the dangers of cellphones." The warning doesn't explicitly say cellphone radiation will cause harm, the site notes. Instead, it takes the "just sayin'" approach, mentioning that the government sets federal guidelines for radio frequency exposure and then adding that if a consumer puts a cellphone too close to his or her body (say, in a pocket or inside a bra) while the phone is on and connected to wireless networks, those exposure limits could be surpassed; it also notes "this potential risk is greater for children." A Berkeley councilman tells the San Francisco Chronicle the language in the notice was picked up right from the warnings in product manuals put out by cellphone manufacturers. Meanwhile, a law professor from Harvard has offered to give the city legal advice and defend the ordinance pro bono because he thinks companies are wielding the First Amendment as "a bullying tool," as the Contra Costa Times puts it. (San Francisco took on a similar battle against the industry in 2013—and lost.)