Consumer Class Actions and Mass Torts : Class Action Lawyer & Attorney : J. Russell Jackson : Skadden Law Firm : Complex Class Actions : Consumer Class Actions & Mass Torts Law Blog

One of the most troubling developments in products liability in the last decade has been the tendency of government entities to believe that they can force product sellers to deliver negative opinions about their lawful products by imposing labeling or signage requirements.  A recent example of such a trend is the City of San Francisco's ordinance requiring the sellers of mobile phones to post signs and stickers scaring the public about radio frequency energy emissions ("RF emissions"), even though the Federal Communications Commission has studied the issue for over a decade and has not found a scientific reason to require precautions against exposure to the limited amount of RF emissions that results from using mobile phones.

Recently, a federal court considered whether this ordinance violates the First Amendment.  Although it did not completely invalidate the ordinance, it did require significant changes in order to protect the product sellers' First Amendment rights.  See CTIA -- The Wireless Association v. The City and County of San Francisco, No. C 10-03224 WHA, Slip op. (N.D. Cal. Oct. 27, 2011). 

There has long been a debate about whether there are any health effects from exposure to RF energy from mobile phones.  The industry's position reportedly is that there is no reliable scientific or medical literature demonstrating that exposure to low levels of RF emissions causes adverse health effects.  The Federal Communications Commission had included on its own website a wireless device fact sheet.  San Francisco claimed to have derived from that site the various warnings that its ordinance was requiring mobile phone sellers to disseminate.  Notably, the FCC changed its fact sheet shortly after the plaintiff filed its lawsuit.  The FCC's new fact sheet indicated that the specific absorption rate ("SAR") of RF energy is not useful for comparing mobile phones and would be potentially misleading if used for that purpose.  Moreover, it stated:  "The FCC does not endorse the need for these practices, but provides information on some simple steps that you can take to reduce your exposure to RF energy from cell phones." 

San Francisco's ordinance was based on a finding that public health requires "cell phone retailers to inform consumers about the potential health effects of cell phone use, and about measures they can take to reduce their exposure to radiofrequency energy from cell phones."  Slip op. at 3.  The ordinance required: (1) retailers to display a poster written by San Francisco's Department of the Environment; (2) retailers to give purchasers a "fact sheet" developed by the Department of the Environment; and (3) retailers who use point-of-display materials to use a stickered message.

The posters are dominated by a graphic that uses silhouettes to show parts of the body that may absorb RF emissions.  It also warns that if you want reduce exposure, keep a distance between the phone and the body, use a headset or speakerphone, and ask for a free factsheet.  In tiny type at the bottom, the poster reads:  "This material was prepared solely by the City and County of San Francisco and must be provided to consumers under local law."  Slip op.at 4-5.

The fact sheet uses the same graphic.  It says that "ALTHOUGH STUDIES CONTINUE TO ASSESS POTENTIAL HEALTH EFFECTS OF MOBILE PHONE USE, THE WORLD HEALTH ORGANIZATION HAS CLASSIFIED RF ENERGY AS  A POSSIBLE CARCINOGEN."  It also has the same tiny dislcaimer as the poster.  On the back, it says San Francisco recommends limiting cell phone use by children, using a headset or speakerphone, using belt clips and purses to distance phones from the body, not using phones where there are weak signals, and reducing call volume and call length.

The sticker says that the body absorbs RF energy and instructs that if you want to reduce exposure, ask for the fact sheet.

Rather than requiring evidence of a statistically significant association between mobile phone use and any adverse health effect, San Francisco claimed that it was employing the "precautionary principle," "which provides that the government should not wait for scientific proof of a health or safety risk before taking steps to inform the public of the potential for harm."  Slip op. at 5.

Of course, if localities were free to impose their own labeling and signage requirements on mobile phones distributed nationally, the industry could quickly be swamped with a patchwork quilt of requirements that could make compliance a nightmare.  Despite this fact, the federal court concluded that -- although the field of technical RF emission standards is preempted by federal law and is solely within the province of the FCC -- "[n]othing in the federal statutes or FCC regulations bars local disclosure requirements like those now required in San Francisco."  Slip op. at 6.  The potential effects of this holding are troubling, to say the least.

Despite the fact that for many years sellers have taken a well-documented position that there is no health risk from low-level exposure to RF emissions, and that precautions like those advocated by San Francisco are not only unnecessary, but may cause consumers to choose phones that are not the best for their needs, the court classified this as a "commercial speech" case, using a lower standard of review to evaluate government regulation.  Slip op. at 7.  Interestingly, it did not cite to Central Hudson or engage in a "less restrictive means" test.  The court noted, however, that where government forces a party to speak against its position, those requirements are "subject to more exacting scrutiny," even in commercial speech cases. 

The court observed that "[w]hether or not cell phones cause cancer is a debatable question and, at this point in history, is a matter of opinion, not fact."  Id.  Nevertheless, it held that San Francisco "deftly dodged" the more exacting scrutiny that would apply to such forced speech by forcing disclosure only of "factoids," "all of which seem to be literally true."

The court held that the statement about WHO's classification of RF emissions as a possible carcinogen is misleading because people do not understand the International Agency for Cancer Research classification system, and the fact the "possible carcinogen" category includes such innocuous items such as coffee and picked vegetables.  (The court raises the question of whether coffee shops could be required to display posters and hand out fact sheets.)

The court dodged the issue of whether the government should be required to demonstrate at least a probable health risk -- rather than mere possible risk -- before it requires retailers to distribute speech against their beliefs and interests.  Slip op. at 10.  Instead, the court held that "a government may impose, out of caution, at least some disclosure requirements based on nothing more than the possibility that an agent may (or may not) turn out to be harmful."  Id.

The court started its First Amendment analysis with the fact sheet, concluding that the "overall message . . . is misleading . . . [because] [t]he overall impression left is that cell phones are dangerous and have somehow escaped the regulatory process . . . [and] the failure to explain the limited significance of the WHO 'possible carcinogen' classification."  Slip op. at 11-12.  Thus, it required San Francisco -- as a condition to not invalidating the entire ordinance -- to amend the fact sheet to include a statement explaining that all mobile phones sold in the US must comply with RF emission limits set by the FCC.  It also required San Francisco to state that "RF energy has been classified by the World Health Organization as a possible carcinogen rather than as a known carcinogen or a probable carcinogen and studies continue to assess the potential health effects of cell phones."

The court also directed San Francisco to lose the silhouette graphic, which it deemed as capable of the interpretation that mobile phones are dangerous.  It concluded that the "image conveys a message that is neither factual nor uncontroversial, for cell phones have not been proven dangerous," and dubbed the graphic "too much opinion and too little fact."  Slip op. at 12-13.

As for the poster, the court concluded that because the fact sheet was approved, the poster was "not reasonably necessary and would unduly intrude on the retailers' wall space."  Accordingly, it directed San Francisco to get rid of the poster requirement.

The court also held that "[t]he sticker requirement is also unconstitutional" because it "will unduly intrude on the retailers' own message."  Slip op. at 13.  The sticker did not disclose that it was solely San Francisco's message.  Moreover, requiring "retailers to paste the stickers over their own promotional literature" would "unduly interfere with the retailers' own right to speak to customers."

Ultimately, the court granted a preliminary injunction against the enforcement of the ordinance, directing the parties to submit an agreed-upon version of the fact sheet that would be the only form of forced speech the court would allow.

Although this opinion is important because it recognizes some constitutional limits on how far a government entity can go in forcing a party to speak against its beliefs and interests, it ultimately fails to give a satisfactory analysis of the First Amendment precedents surrounding forced speech, and fails wholly to address the "less restrictive means" San Francisco would have of communicating to the public its view of precautions one can take to reduce a risk that has not even been scientifically established yet.  Government speech -- using the internet, public service announcements, or even signage on public transit -- would achieve the same effect without forcing a party to disseminate speech with which it disagrees.  Particularly where the government can demonstrate no threat to public health whatsoever, there simply can be no justification for forcing a party to disseminate messages with which it disagrees.

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Few people seem to give a damn about the First Amendment anymore.  Increasingly, proponents of a Nanny State seek to impose governmental restrictions on what adults can see, watch and hear.  One of their favorite tactics is to prey on society's fear of harming "the children" -- as if parents have no responsibility to monitor what media their children consume and provide personal guidance about individual responsibility and what is right and wrong.  For example, certain parents employed the longstanding tactic of demonizing product advertising as virtually irresistable mind control in a series of unsuccessful class actions brought to impose upon alcohol beverage advertisers the responsibility for their own teenagers' intentional violations of state underage drinking laws.  See, e.g., Alston v. Advanced Brands & Importing Co., 494 F.3d 562 (6th Cir. 2007).  Similarly, plaintiffs have attempted -- unsuccessfully -- to impose on entertainment providers the responsibility for a troubled schoolchild's murderous rampage.  See James v. Meow Media, Inc., 300 F.3d 683 (6th Cir. 2002). Moreover, in far too many instances, the majority of legislators seems willing to ban or limit speech for adults in ways that contravene the First Amendment. 

Perhaps that is why the Entertainment Software Association's recent victory in the Ninth Circuit is so gratifying; it demonstrates an unbroken series of over a dozen cases in which local or state laws restricting video game sales have been invalidated on First Amendment grounds.  In Video Software Dealers Association v. Schwarzenegger, No. 07-16620, slip op. (9th Cir. Feb. 20, 2007), the Ninth Circuit upheld a district court's decision invalidating a California statute that prohibited selling a "violent video game" to a minor and imposed a labeling requirement on all video games deemed "violent" under an amorphous definition.  The Ninth Circuit recognized -- and even the State of California did not contest -- that video games "are a form of expression protected by the First Amendment."  Slip op. at 1951.  Because the statute sought to restrict expression in video games based on their content, the court gave the statute strict scrutiny review. 

Under the strict scrutiny level of review, the statute is presumptively invalid and is evaluated in two steps.  First, it "'must be narrowly tailored to promote a compelling Government interest.'"  Id. at 1952 (citation omitted).  Second, "'[i]f a less restrictive alternative would serve the Government's purpose, the legislature must use that alternative.'"  Id. (citation omitted).

The State of California had objected to the use of strict scrutiny review, arguing that because the statute was enacted to protect children, it should only have to meet a rational basis review.  The Ninth Circuit disagreed, noting that the case the State relied upon was based in the U.S. Supreme Court's obscenity jurisprudence, which relates to sex-based expression that is not protected by the First Amendment.  Violent content, in contrast, retains its First Amendment protection.  Id. at 1953.

The Ninth Circuit proceeded to analyze the State's interest, which the State identified as "'preventing psychological or neurological harm to minors who play violent video games.'"  Id. at 1957 (quoting the statute).  The court noted that it was important to distinguish between a legitimate interest in protecting minors from neurological harm and an illegitimate interest in controlling their thoughts.  The State put forth experts who relied on a number of studies, but those studies did not establish proof of a negative neurological effect on minors who played violent video games.  Rather, they noted the "relative paucity of the video game literature" and conceded that that literature "is not sufficiently large to conduct a detailed meta-analysis."  Id. at 1960.  Moreover, the studies only documented, at best, a correlation between exposure to violent media and the exhibition of hostility or aggression, they did not document a causal effect.  Id. at 1961-63.  The Ninth Circuit concluded that the State failed to meet its burden to demonstrate a compelling interest that could be met by the statute.

The Ninth Circuit then proceeded to the second step of the analysis:  whether the statute was narrowly tailored to meet the governmental interest and there were no less restrictive means for doing so.  This is where the State's case really crumbled.  The video game industry engages in self-regulation through the Entertainment Software Rating Board ("ESRB"), an independent body that rates video game content with one of six age-specific ratings, from "Early Childhood" to "Adults Only."  Id. at 1946.  It also assigns each game at least one of roughly 30 content descriptors, including "Cartoon Violence," "Intense Violence," "Crude Humor," "Blood and Gore," and "Sexual Violence."  Id. at 1947.  Thus, parents are able to easily monitor the content of games their children may ask for.  The State argued that this voluntary system of self-regulation did not sufficiently keep mature-rated games out of the hands of minors.  But in touting the superiority of its statute, the State simply missed the point:

Further, the State does not acknowledge the possibility that an enhanced education campaign about the ESRB rating system directed at retailers and parents would help achieve government interests. . . .  The State appears to be singularly focused on the "most effective" way to further its goal, instead of the "least restrictive means," and has not shown why the less restrictive means would be ineffective.

Id. at 1964 (citations omitted).  Thus, the Ninth Circuit held that the statute also failed the "less restrictive means" prong of the First Amendment analysis.

The Ninth Circuit's recent decision is a strong reminder that where industries engage in effective self-regulation and take care to accommodate consumers' concerns about their products and advertising, the First Amendment can be an important guardian against the inclination of many well-meaning individuals to have government dictate speech content under the guise of "protecting" the public interest.

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