Arguing that San Francisco’s new cell phone radiation law violates the Supremacy Clause of the U.S. Constitution, the CTIA wireless industry association has filed a lawsuit to halt its enforcement.
Passed in June after publication of a controversial cell phone study in an international medical journal, the new San Francisco ordinance requires all retailers selling wireless devices to display radiation levels of the phones.
The San Francisco Board of Supervisors and Mayor Gavin Newsome approved the cell phone law following release of a study known as Interphone which indicated there might be increased brain cancer risk after heavy long-term cell phone use.
The CTIA’s legal argument against this law rests on a tenet of the Constitution which has commonly been used in cases where there are differences between federal law and state or municipal statute.
SAR Radiation Levels Stir Contention
The Federal Communications Commission (FCC) already sets acceptable radiation levels for cell phones in the U.S. The FCC requires all cell phone makers to test phones for radiation with independent labs. Results are then posted on the FCC’s Web site.
“The [San Francisco] ordinance misleads consumers by creating the false impression that the FCC’s standards are insufficient and some phones are safer than other based on their radio frequency emissions,” according to the CTIA.
Specifically, retailers in San Francisco are mandated under the new law to display the Specific Absorption Rate (SAR) — a measure of radiation referring to the rate at which energy is absorbed by a mass of tissue – for the cell phones they sell.
A non-profit organization called the Environmental Working Group already operates a publicly accessible, searchable Web-based database showing the SARs of various phones.
“CTIA’s objection is that displaying a phone’s SAR value at the point-of-sale (POS) suggests to the consumer that there is a meaningful safety distinction between FCC-compliant devices with different SAR levels,” said John Walls, the CTIA’s VP of public affairs, in a statement.
Case Revolves around Supremacy Clause
The CTIA is challenging the new San Francisco ordinance under a clause in Article VI of the Constitution which states as follows: “The Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”
In the case of Edgar v. Mite Corporation in 1982, the Supreme Court interpreted the Supremacy Clause to mean, in part, that, “A state statute is void to the extent that it actually conflicts with a valid federal statute.”
Brain Cancer Study Comes Up with Mixed Results
The Interphone cell phone study published in the May edition of the International Journal of Epidemiology found that “overall, cell phone users have no increased risk of two of the most common forms of brain cancer — glioma and meningioma,” according to a statement by the National Cancer Institute (NCI) of the U.S. National Institutes of Health (NIH).
On the other hand, “for the small proportion of study participants who used cell phones the most — measured as cumulative call time over their lifetime — there was a suggestion of increased risk of glioma, though the authors call this finding inconclusive.”