May 8, 2013 at 1:25 PM ET
San Francisco city leaders will revoke an ordinance requiring retailers to give consumers controversial warnings about radiation from cellphones, following a key loss in court against the cellphone industry.
In a move watched by other U.S. states and cities considering similar measures, the city Board of Supervisors voted on Tuesday to settle a lawsuit with the Cellular Telecommunications Industry Association by accepting a permanent injunction against the right-to-know cellphone ordinance, which would have been the first in the United States.
CTIA had alleged the law violated its free-speech rights, and the settlement marked a victory for the industry as the Federal Communications Commission considers a reassessment of safe radiation exposure limits adopted in 1996.
"This is just a terrible blow to public health," Ellen Marks, an advocate for the measure, said outside the supervisors' chambers. She said her husband suffers from a brain tumor on the same side of his head to which he most often held his mobile phone.
The industry association has asserted the San Francisco ordinance, if put into effect, would mislead consumers about the relative risks posed by cellphones, contrary to the FCC's determination that all wireless phones legally sold in the Unites States are safe.
"The U.S. Court of Appeals in San Francisco has found that the FCC 'has established limits of radiofrequency energy exposure, within which it has concluded using cellphones is safe,'" said John Walls, VP, of public affairs for CTIA, in a statement to NBC News. "Moreover, as the Federal District Court observed, 'San Francisco concedes that there is no evidence of cancer caused by cellphones.' The ordinance would have compelled retailers to make statements to consumers that the federal courts found were 'misleading.'"
The group's members include some of the nation's largest cellphone network carriers and manufacturers, including Verizon Wireless, AT&T, Samsung and Apple.
The 2011 ordinance mandated warnings that cellular phones, including smartphone devices, emit potentially cancer-causing radiation. The statute, which a judge blocked before it took effect, also would have required retailers of the devices to post notices stating that World Health Organization cancer experts have deemed mobile phones "possibly carcinogenic." (The WHO recommends more study before calling any finding conclusive.)
Deputy City Attorney Vince Chhabria said a federal appeals court decision last year upholding a preliminary injunction against the measure signaled that trying to win the case at trial would be a long shot. If the city lost, a judge could have awarded the industry group as much as $500,000 in attorneys' fees, he said.
Supervisor David Campos reluctantly supported the settlement. "I think the legal reality is that if we don't approve the settlement, we're talking about having to pay $500,000 in legal fees," he said.
Chhabria said the 9th U.S. Circuit Court of Appeals ruling had left San Francisco in the position of having to prove that scientists concurred about the hazards of cellphones and that the FCC no longer believes they are safe.
The issue of whether cellphones are dangerous is highly controversial. "The weight of scientific evidence has not linked cellphones with any health problems," the Food and Drug Administration says.
Dr. Gabriel Zada, a neurosurgery professor at the University of Southern California's Keck School of Medicine, found in a 2012 study that the age-adjusted incidence of malignant tumors in the parts of the brain closest to where people hold their phones rose significantly from 1992 and 2006 in California. But Zada told Reuters he could not draw any conclusions about the dangers of cellphones from his findings.
The Environmental Working Group, a nonprofit research organization, had pushed for San Francisco's right-to-know law.
"If the nation's experience with tobacco taught us anything, it is that it is dangerous to wait until there is scientific consensus about a potential health threat before providing consumers with information on how they can protect themselves," said Renee Sharp, the group's research director.
Mobile phones are tested to ensure their emissions fall within FCC limits considered safe. The limits, however, fail to reflect the latest research or actual conditions under which mobile phones are used, liked being held in a pocket directly against the body while talking through an earpiece, according to a Government Accountability Office report.
The FCC last month agreed to consider revising its 17-year-old guidelines.
— NBC News' Wilson Rothman and Maggie Fox and Reuters' Ronnie Cohen contributed to this story