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CTIA – The Wireless Ass’n v. City and County of San Francisco

Topic(s): First Amendment
Hazardous Substances and Environmental Protection
Preemption of Consumer Remedies

Documents:

Description:

San Francisco adopted an ordinance requiring retailers to provide consumers with certain information about radiofrequency (RF) radiation from cell phones. CTIA - The Wireless Association sued, arguing that the ordinance violated the First Amendment and was preempted by FCC regulation. The district court upheld part of the ordinance and struck down part, and both sides appealed. In a very brief opinion issued in September 2012, the court of appeals held that the ordinance violates retailers’ First Amendment rights because the information that it requires retailers to convey is not “purely factual and uncontroversial.” San Francisco has filed a petition for rehearing en banc with the court of appeals.

We represent the Environmental Working Group (EWG) and Public Citizen as amici curiae on appeal. Our brief before the panel argued that requiring retailers to provide consumers with material information about possible health hazards of cell-phone use does not violate the First Amendment and that the ordinance is not impliedly preempted by federal standards. In light of the panel’s decision, we moved for EWG and Public Citizen to participate as amici in support of San Francisco’s petition for rehearing en banc. Our brief in support of that petition argues that rehearing en banc is appropriate because the panel’s decision applied the wrong legal standard to assess the permissibility of the fact sheet requirement under the First Amendment. It also urged rehearing en banc in light of the sweeping implications that the panel’s decision has for the permissibility of other mandatory consumer disclosure requirements.

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