On the Berkeley “right to know” ordinance

On Tuesday, Berkeley City Council adopted unanimously an ordinance inspired by Councilman Max Anderson, and which I and Robert Post helped craft. I was very happy to bat cleanup in an effort that has been underway for years. 

But there’s some serious misunderstanding about the ordinance and its purpose. 

No doubt many of the people fighting for the ordinance have a firm belief that non-ionizing radiation presents a significant and underappreciated health risk.

Those people believe this for different reasons. Some believe it because of personal experience: The letter from the mother who lost a daughter who carried her cellphone in her bra, and who then was discovered to have four cancerous lumps perfectly mirroring where her phone had been carried, is a letter from someone who believes this because there’s no other way for her to understand her loss. Devra Davis, who testified at the hearing and who has been fighting this for years, believes this because of her own research, and the research of others (in her testimony, she recounted research showing damage to sperm from cell phone radiation). Likewise with Dr. Joel Moskowitz, who also testified at the hearing, and who is one of the 198 scientists from 39 countries (producing more than 2,000 peer-reviewed articles about the effects of RF radiation) signing a letter to the UN calling on that body to press for better research into this risk. 

These are all people who believe there is a risk that is not yet acknowledged. They are people who challenge the current (apparent) scientific consensus that non-ionizing radiation presents no special health risk.

I am not a scientist. And though I am skeptical of “money science” (aka $cience) and eager to see more research from scientists not so directly tied to industry, my willingness to help Berkeley is not a judgment by me that the conventional view is wrong. 

Indeed, as I said in the opening of my testimony, and as Councilmembers Anderson and Kriss Worthington said in their testimony, this ordinance is not about that scientific debate. It is simply about giving Berkeley citizens the information they need to make choices about how they use their cellphones. 

Because in fact, there are existing safety recommendations for cellphone use. And Berkeley’s citizens don’t know them. 

Those safety recommendations advise consumers not to carry their cell phone against their body. Here’s Apple’s statement

To reduce exposure to RF energy, use a hands-free option, such as the built-in speakerphone, the supplied headphones, or other similar accessories. Carry iPhone at least 10mm away from your body to ensure exposure levels remain at or below the as-tested levels. Cases with metal parts may change the RF performance of the device, including its compliance with RF exposure guidelines, in a manner that has not been tested or certified.

Likewise, here’s the Blackberry statement

Use hands-free operation if it is available and keep the BlackBerry device at least 0.59 in (15mm) from your body (including the abdomen of pregnant women…

Berkeley citizens don’t know of this advice. In a poll we commissioned before the ordinance was finalized, we found:

74% of Berkeley residents carry their cell phone against their body. 

70% said they didn’t know that cell phones were tested assuming they would not be carried against the body. 

80% said they might change their behavior if they knew knowing that “radiation tests to assure the safety of cell phones assume a cell phone would be carried away from your body”

85% said they had never known or read any of the manufacturer’s recommendations. 

82% said they would want this information made available to them at the time they purchased their cell phone. 

So there is a gap between the existing safety recommendations and what the citizens of Berkeley know. And the purpose of this ordinance is to close that gap: to give the citizens the information they need to make a judgment about how best to use their cell phones. Here’s the text of the required notice: 

The City of Berkeley requires that you be provided the following notice: 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.

This is a very minimal requirement. Yet even this is attacked by the industry. The CTIA sent its representative to testify against the ordinance. They also sent the Councilmembers a letter articulating the reason$ they oppose the ordinance. The letter is pretty extraordinary. But two bits especially deserve calling out. 

In trying to explain why the recommendations about carrying a cellphone away from the body aren’t in fact safety recommendations (maybe they’re style or aesthetic recommendations?), the CTIA quotes this from an FCC publication: 

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.

I was a bit stunned to read this, as I read it to be saying that the FCC was saying that it was safer to carry the cellphone against your body than away from your body. And if indeed that was true, that would be a pretty good argument against the ordinance. 

But within a couple hours of receiving this letter, one of the volunteers working to support this ordinance, Cindy Franklin, sent me this: 

This quote appears in the FCC’s Mar 29, 2013 Notice of Inquiry - 13-39 “Reassessment of Federal Communications Commission Radiofrequency Exposure Limits and Policies.”

However, the CTIA’s quote is taken out of context.

What the FCC is saying in their NOI is that because a particular phone is tested AT MAXIMUM POWER - any typical cell phone use by a consumer with NO separation distance will likely  result in lower SAR than the maximum SAR registered when the phone was tested with a small separation distance.  (This statement quoted by CTIA is based upon opinions of the staff writing the NOI -  there have been no studies to back up this assertion.)

Oh the magic of context. 

The other bit of crazy talk in the CTIA’s letter comes at the end. After asserting without any argument (because the assertion is just false) that a “very similar warning requirement in San Francisco was recently held unconstitutional by the U.S. Court of Appeals for the Ninth Circuit,” the CTIA writes: 

The court further reasoned that because the FCC “has established limits of radiofrequency energy exposure, within which it has concluded using cell phones is safe,” the mandated warnings were “misleading and controversial.” The proposal before you is similarly fraught.

But the only purpose of the Berkeley Ordinance is to make people aware of the “limits of radiofrequency energy exposure” which the FCC “has established.” It’s not clear how when the FCC mandates these limits to be published by the manufacturer, there’s no constitutional problem with them, but when Berkeley wants to assure that its citizens actually know about these recommendations, the First Amendment is magically violated. 

I believe the law gives Berkeley the right to require cell phone manufacturers to better communicate existing safety standards, so long as the burden is minimal — which this is. 

And I believe that this history of interested science addressing the questions of cellphone safety lead inevitably to the doubts that so many people have. 

But those doubts aren’t the justification for Berkeley’s law. The lack of information is.