Lead Opinion
Dissent by Judge FRIEDLAND
OPINION
A City of Berkeley ordinance requires cell phone retailers to inform prospective cell phone purchasers that carrying a cell phone in certain ways may cause them to exceed Federal Communications Commission guidelines for exposure to radio-frequency radiation. CTIA, a trade association formerly known as Cellular Telephone Industries Association, challenges the ordinance on two grounds. First, it argues that the ordinance violates the First Amendment. Second, it argues that the ordinance is preempted.
CTIA requested a preliminary injunction staying enforcement of the ordinance. The district court denied CTIA’s request, and CTIA filed an interlocutory appeal. We affirm and remand for further proceedings.
I. Factual and Procedural Background
In May 2015, the City of Berkeley passed an ordinance requiring cell phone retailers to disclose information to prospective cell phone purchasers about the federal government’s radio-frequency radiation exposure guidelines relevant to cell phone use. Under “Findings and Purpose,” the ordinance provided:
A. Requirements for the testing of cell phones were established by the federal government in 1996.
B. These requirements established “Specific Absorption Rates” (SAR) for cell phones.
C. The protocols for testing the SAR for cell phones carried on a person’s body assumed that they would be carried a small distance away from the body, e.g., in a holster or belt clip, which was the common practice at that time. Testing of cell phones under these protocols has generally been conducted based on an assumed separation of 10-15 millimeters.
D. To protect the safety of their consumers, manufacturers recommend that their cell phones be carried away from the body, or be used in conjunction with hands-free devices.
E. Consumers are not generally aware of these safety recommendations.
F. Currently, it is much more common for cell phones to be carried in pockets or other locations rather than holsters or belt clips, resulting in much smaller separation distances than the safety recommendations specify.
G. Some consumers may change their behavior to better protect themselves and their children if they were aware of these safety recommendations.
H. While the disclosures and warnings that accompany cell phones generally advise consumers not to wear them against their bodies, e.g., in pockets, waistbands, etc., these disclosures and warnings are often buried in fine print, are not written in easily understood lan*1111 guage, or are accessible only by looking for the information on the device itself.
I.The purpose of this Chapter is to assure that consumers have the information they need to make their own choices about the extent and nature of their exposure to radio-frequency radiation.
Berkeley Mun. Code § 9.96.010 (2015).
CTIA challenged the compelled disclosure provision of the ordinance, arguing that it violated the First Amendment and was preempted. One sentence of the compelled disclosure stated, “The potential risk is greater for children.” The district court held that this sentence was preempted, and it issued a preliminary injunction against enforcement of the ordinance. In December 2015, Berkeley re-passed the ordinance without the offending sentence. In its current form, the compelled disclosure provision provides:
A. A Cell phone retailer shall provide to each customer who buys or leases a Cell phone a notice containing the following language:
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. Refer to the instructions in your phone or user manual for information about how to use your phone safely.
Berkeley Mun. Code § 9.96.030(A) (2015).
The ordinance requires that the compelled disclosure be provided either on a prominently displayed poster no less than 8 ½ by 11 inches with no smaller than 28-point font, or on a handout no less than 5 by 8 inches with no smaller than 18-point font. The logo of the City of Berkeley must be placed on the poster and handout. The ordinance provides that a cell phone retailer may include additional information on the poster or handout if it is clear that the additional information is not part of the compelled disclosure. § 9.96.030(B) (“The paper on which the notice is printed may contain other information in the discretion of the Cell phone retailer, as long as that information is distinct from the notice language required by subdivision (A) of this Section.”).
CTIA challenged the current ordinance, arguing, as it had before, that the ordinance violates the First Amendment and is preempted. The district court noted that the preempted sentence had been removed from the ordinance, dissolved its previously entered injunction, and denied CTIA’s request for a new preliminary injunction. CTIA filed an interlocutory appeal.
II.Jurisdiction and Standard of Review
We have jurisdiction under 28 U.S.C. § 1292. We review a denial of a preliminary injunction for abuse of discretion. Inst. of Cetacean Research v. Sea Shepherd Conservation Soc’y,
III.Regulatory Background
The Federal Communications Commission (“FCC”) has regulatory jurisdiction
1. By this action, we are amending our rules to adopt new guidelines and methods for evaluating the environmental effects of radio-frequency (RF) radiation from FCC-regulated transmitters. We are adopting Maximum Permissible Exposure (MPE) limits for electric and magnetic field strength and power density for transmitters operating at frequencies from 300 kHz to 100 GHz ... We are also adopting limits for localized (“partial body”) absorption that will apply to certain portable transmitting devices ... We believe that the guidelines we are adopting will protect the public and workers from exposure to potentially harmful RF fields.
2. In reaching our decision on the adoption of new RF exposure guidelines we have carefully considered the large number of comments submitted in this proceeding, and particularly those submitted by the U.S. Environmental Protection Agency (EPA), the Food and Drug Administration (FDA) and other federal health and safety agencies. The new guidelines we are adopting are based substantially on the recommendations of those agencies, and we believe that these guidelines represent a consensus view of the federal agencies responsible for matters relating to the public safety and health.
In re Guidelines for Evaluating the Environmental Effects of Radio-frequency Radiation, 61 Fed. Reg. 41006, 41006-07 (Aug. 7,1996) (emphases added).
Out of concern for the safety of cell phone users, the FCC rejected an industry proposal to exclude “low-power devices” such as cell phones from the rule adopting SAR limits:
Most commenting parties, including Federal health and safety agencies, support the use of the ANSI/IEEE [American National Standards Institute/ Institute of Electrical and Electronic Engineers] SAR limits for localized (partial body) exposure for evaluating low-power devices designed to be used in the immediate vicinity of the body.... Therefore, in view of the consensus and the scientific support in the record, we are adopting the SAR limits for the determination of safe exposure from low-power devices designed to be used in the immediate vicinity of the body based upon the 1992 ANSI/IEEE guidelines....
The SAR limits we are adopting will generally apply to portable devices ... that are designed to be used with any part of the radiating structure of the device in direct contact with the body of the user or within 20 cm of the body under normal conditions of use. For example, this definition would apply to hand-held cellular telephones....
In re Guidelines for Evaluating the Environmental Effects of Radio-frequency Radiation (“FCC Guidelines for Radiofre-quency Radiation”), FCC 96-326, ¶¶ 62-63 (Aug. 1,1996) (emphases added).
The FCC has a better-safe-than-sorry policy with respect to SAR limits:
... The intent of our exposure limits is to provide a cap that both protects the public based on scientific consensus and allows for efficient and practical implementation of wireless services. The present Commission exposure limit is a “bright-line rule.” That is, so long as exposure levels are below a specified limit value, there is no requirement to further reduce exposure.... Our current RF exposure guidelines are an ex*1113 ample of such regulation, including a significant “safety” factor, whereby the exposure limits are set at a level on the order of 50 times below the level at which adverse biological effects have been observed in laboratory animals as a result of tissue heating resulting from RF exposure.
In re Reassessment of FCC Radiofrequency Exposure Limits and Policies, 28 FCC Rcd. 3498, 3582 (Mar. 29, 2013). The FCC recognizes that its required margin of safety is large:
... [Exceeding the SAR limit does not necessarily imply unsafe operation, nor do lower SAR quantities imply “safer” operation. The limits were set with a large safety factor, to be well below a threshold for unacceptable rises in tissue temperature. As a result, exposure well above the specified SAR limit should not create an unsafe condition.... In sum, 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.
Id. at 3588 (emphasis added).
There are two ways to ensure compliance with SAR limits — reducing the amount of RF radiation from a transmitting device, and increasing the distance between the device and the user. Different low-power devices emit different amounts of RF radiation, with the result that the minimum distance between the device and the user to achieve compliance with SAR limits varies somewhat from device to device. The FCC requires that cell phone user manuals contain information that alerts users to the minimum distances appropriate for the device they are using:
Specific information must be included in the operating manuals to enable users to select body-worn accessories that meet the minimum test separation distance requirements. Users.must be fully informed of the operating requirements and restrictions, to the extent that the typical user can easily understand the information, to acquire the required body-worn accessories to maintain compliance. Instructions on how to place and orient a device in body-worn accessories, in accordance with the test results, should also be included in the user instructions. All supported body-worn accessory operating configurations must be clearly disclosed to users, through conspicuous instructions in the user guide and user manual, to ensure unsupported operations are avoided.
In re Exposure Procedures and Equipment Authorization Policies for Mobile and Portable Devices, FCC Office of Engineering and Technology Laboratory Division § 4.2.2(d) (Oct. 23, 2015) (“FCC Exposure Procedures”) (emphasis added). Compliance with this disclosure requirement is a prerequisite for approval of a transmitting device by the FCC. See id. at § 1.
The following are examples of cell phone user manuals that comply with the FCC’s disclosure requirement:
Apple:
iPhone’s SAR measurement may exceed the FCC exposure guidelines for body-worn operation if positioned less than 15 mm (5/8 inch) from the body (e.g. when carrying iPhone in your pocket).
See iPhone 3G manual, at 7, http:// manuals.info.apple.com/MANUALS/0/MA 618/en_US/iPhone„3G_Important_ Product_Information_Guide.pdf
Samsung:
If there is a risk from being exposed to radio-frequency energy (RF) from cell phones — and at this point we do not know that there is — it is probably very small. But, if you are concerned*1114 about avoiding even potential risks, you can take a few simple steps to minimize your RF exposure.
• Reduce the amount of time spent using your cell phone;
• Use speaker mode or a headset to place more distance between your head and the cell phone.
See Samsung Common Phone Health and Safety and Warranty Guide, at 8, http:// www.samsung.com/us/Legal/PHONE-HS_ GUIDE_English.pdf.
LG:
The highest SAR value for this model phone when tested for use at the ear is 1.08 W/Kg (lg) and when worn on the body, as described in this user guide, is 0.95 W/Kg (lg) (body-worn measurements differ among phone models, depending upon available accessories and FCC requirements). While there may be differences between SAR levels of various phones and at various positions, they all meet the government requirement for safe exposure. The FCC has granted an Equipment Authorization for this model phone with all reported SAR levels evaluated as in compliance with the FCC RF emission guidelines. SAR information on this model phone is on file with the FCC and can be found under the Display Grant section of http://www.fcc.gov/oet/ea/fccid/ after searching on FCC ID ZNFL15G.
See LG Sunrise User Guide, at 93, http:// www.lg.com/us/support/manuals-documents
IV. Discussion
“A plaintiff seeking a preliminary injunction must establish [1] that he is likely to succeed on the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an injunction is in the public interest.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20,
A. Likelihood of Success
CTIA makes two merits-based arguments against the Berkeley ordinance. First, it argues that the ordinance violates the First Amendment: Second, it argues that the ordinance is preempted. We take the arguments in turn.
1. First Amendment
The underlying disclosure at issue is the disclosure that the FCC compels cell phone manufacturers to provide to consumers. However, CTIA has not sued the FCC. Rather, CTIA has sued Berkeley, challenging the disclosure Berkeley compels cell phone retailers to provide to the same consumers. The Berkeley ordinance requires cell phone retailers to disclose, in summary form, the same information to consumers that the FCC already requires cell phone manufacturers to disclose. The Berkeley disclosure then directs consumers to user manuals for more specific information.
a. Central Hudson or Zauderer
The parties agree that Berkeley’s ordinance is a regulation of commercial speech. Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of N.Y., 447 U.S. 557, 561,
Under Central Hudson, the government may restrict or prohibit commercial speech that is neither misleading nor connected to unlawful activity, as long as the governmental interest in regulating the speech is substantial.
We apply the intermediate scrutiny test mandated by Central Hudson in commercial speech cases where speech is restricted or prohibited, on the ground that in such cases intermediate scrutiny appropriately protects the interests of both the speaker (the seller) and the audience (the purchaser). But one size does not fit all in commercial speech cases. In Central Hudson itself, the Supreme Court cautioned, “The protection available for particular commercial expression turns on the nature both of the expression and of the governmental interests served by its regulation.” Central Hudson,
Five years after Central Hudson, the Court held that Central Hudson’s intermediate scrutiny test does not apply to compelled, as distinct from restricted or prohibited, commercial speech. In Zauderer, defendant Zauderer advertised legal services to prospective Daikon Shield plaintiffs in a number of Ohio newspapers. The advertisement stated, inter alia, “ ‘The cases are handled on a contingent fee basis of the amount recovered. If there is no recovery, no legal fees are owed by our clients.’” Zauderer,
Because the extension of First Amendment protection to commercial speech is justified principally by the value to consumers of the information such speech provides, appellant’s constitutionally protected interest in not providing any particular factual information is minimal .... We recognize that unjustified or unduly burden some disclosure requirements might offend the First Amendment by chilling protected commercial speech. But we hold that an advertiser’s rights are adequately protected as long as disclosure requirements are reasonably related to the State’s interest in preventing deception of consumers.
b. The Zauderer Test
i. Substantial Governmental Interest
CTIA contends that the Zauderer exception to the general rule of Central Hudson does not apply in this case because the speech compelled by the Berkeley ordinance does not prevent deception of consumers. This is the first time we have had occasion in this circuit to squarely address the question whether, in the absence of a prevention-of-deception rationale, the Zau-derer eompelled-diselosure test applies. Cf. Video Software Dealers Ass’n v. Schwarzenegger,
In American Meat Institute v. U.S. Department of Agriculture,
In National Electrical Manufacturers Association v. Sorrell,
We agree with our sister circuits that under Zauderer the prevention of consumer deception is not the only governmental interest that may permissibly be furthered by compelled commercial speech. We conclude that any governmental interest will suffice so long as it is substantial. In American Meat, the D.C. Circuit declined to decide whether the governmental interest must be substantial, leaving open the question whether a less-than-substantial interest might suffice. See Am. Meat,
ii. Purely Factual Information
The Court in Zauderer noted that the compelled disclosure in that case was of “purely factual and uncontroversial information.” Zauderer,
Given that the purpose of the compelled disclosure is to provide accurate factual information to the consumer, we agree that any compelled disclosure must be “purely factual.” However, “uncontroversial” in this context refers to the factual accuracy of the compelled disclosure, not to its subjective impact on the audience. This is clear from Zauderer itself. The State of Ohio required attorneys to disclose “the client’s potential liability for costs even if her suit were unsuccessful.”
c. Application of Zauderer Test
Under Zauderer, compelled disclosure of commercial speech complies with the First Amendment if the information in the disclosure is reasonably related to a substantial governmental interest and is purely factual. The question before us is whether the speech compelled by the Berkeley ordinance satisfies this test.
i. Reasonably Related to a Substantial Governmental Interest
There is no question that protecting the health and safety of consumers is a substantial governmental interest. See, e.g., Posadas de Puerto Rico Assocs. v. Tourism Co. of Puerto Rico,
CTIA argues strenuously that radio-frequency radiation from cell phones has not been proven dangerous to consumers. Limiting itself to research published when the record was made in this case, CTIA is correct in pointing out that there was nothing then before the district court showing that such radiation had been proven dangerous. But this is beside the point. The fact that RF radiation from cell phones had not been proven dangerous was well known to the FCC in 1996 when it adopted SAR limits to RF radiation; was well known in 2013 when it refused to exclude cell phones from its rule adopting SAR limits; and was well known in 2015 when it required cell phone manufacturers to tell consumers how to avoid exceeding
The FCC concluded that requiring cell phone manufacturers to inform consumers in their users manuals of SAR limits on RF radiation, and to tell them how to avoid excessive exposure, furthered the federal government’s interest in protecting their health and safety. The City of Berkeley concluded that consumers were largely unaware of the contents of their users manuals. Agreeing with the FCC that the information about SAR limits and methods of avoiding excessive exposure is important, Berkeley requires cell phone retailers to provide some of that same information to consumers and to direct them to their user manuals for farther details. We are not in a position to disagree with the conclusions of FCC and Berkeley that this compelled disclosure is “reasonably related” to protection of the health and safety of consumers.
ii. Purely Factual
CTIA argues that Berkeley’s compelled disclosure is not “purely factual” within the meaning of Zander er. We disagree.
For the convenience of the reader, we again provide the full text of the compelled disclosure:
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. Refer to the instructions in your phone or user manual for information about how to use your phone safely.
Berkeley Mun. Code § 9.96.030(A) (2015).
The text of the compelled disclosure is literally true. We take it sentence by sentence:
(1) “To assure safety, the Federal Government requires that cell phones meet radio-frequency (RF) exposure guidelines.” This statement is true. As recounted above, beginning in 1996 the federal government has set RF exposure guidelines with which cell phones must comply.
(2) “If you carry or use your cell 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 statement is also true. The FCC has established SAR limits for RF radiation, and has concluded that maintaining a certain separation between a cell phone and the user’s body protect consumers from exceeding these limits.
(3) “Refer to the instructions in your phone or user manual for information about how to use your phone safely.” This sentence is an instruction rather than a direct factual statement. However, it clearly implies a factual statement that “information about how to use your phone safely” in compliance with the FCC’s RF “exposure guidelines” “to assure safety,” may be found either in a cell phone or user manual. This implied statement, too, is true.
We recognize, of course, that a statement may be literally true but nonetheless misleading and, in that sense, untrue. That is what CTIA argues here. CTIA argues that the compelled disclosure is inflammatory and misleading, and that it is therefore not “purely factual.” CTIA bases its
CTIA argues that “[t]he Ordinance requires an inflammatory warning about unfounded safety risks”; that “[t]he Ordinance clearly and deliberately suggests that the federal RF energy testing guideline (the SAR limit) is the demarcation point of ‘safety for cell phones, such that ‘exposure’ to RF energy above that limit creates a safety hazard”; and that “[t]he Ordinance is misleading for the additional reason that it uses the inflammatory term ‘radiation,’ which is fraught with negative associations, in order to stoke consumer anxiety.” CTIA argues further that the phrase “RF radiation” is “fraught with negative associations,” that it is used in the compelled disclosure “in order to stoke consumer anxiety,” and that it is therefore not “purely factual.”
We read the text differently. The first sentence tells consumers that cell phones are required to meet federal “RF exposure guidelines” in order “[t]o assure safety.” Far from inflammatory, this statement is largely reassuring. It assures consumers that the cell phones they are about to buy or lease meet federally imposed safety guidelines.
The second sentence tells consumers what to do in order to avoid exceeding federal guidelines. This statement may not be reassuring, but it is hardly inflammatory. It provides in summary form information that the FCC has concluded that consumers should know in order to ensure their safety. Indeed, the FCC specifically requires cell phone manufacturers to provide this information to consumers. See “FCC Exposure Procedures” § 4.2.2(d) (“Specific information must be included in the operating manuals to enable users to select body-worn accessories that meet the minimum test separation distance requirements .... All supported body-worn accessory operating configurations must be clearly disclosed to users, through conspicuous instructions in the user guide and user manual, to ensure unsupported operations are avoided.”) (emphasis added).
The third sentence tells consumers to consult their user manuals to obtain further information — that is, to obtain the very information the FCC requires cell phone manufacturers to provide in “conspicuous instructions” in user manuals.
Further, the phrase “RF radiation,” used in the second sentence, is precisely the phrase the FCC has used, beginning in 1996, to refer to radio-frequency emissions from cell phones. See FCC Guidelines for Radio frequency Radiation at ¶ 1, supra at 9 (“radio-frequency (RF) radiation”). We do not fault Berkeley for using the term “RF radiation” when referring to cell phone emissions when it is not only the technically correct term, but also the term the FCC itself uses to refer to such emissions.
Finally, we note that the Berkeley ordinance allows a cell phone retailer to add to the compelled disclosure. If a retailer is concerned, as CTIA contends it should be, that the term “RF radiation” is inflammatory and misleading, the retailer may add to the compelled disclosure any further statement it sees fit to add. See § 9.96.030(B) (“The paper on which the notice is printed may contain other information in the discretion of the Cell phone retailer[.]”). CTIA has put nothing in the record to indicate that any Berkeley retailer has felt it necessary, or even useful, to add explanatory information about the nature of RF radiation. Nor has CTIA presented any evidence in the district court showing how Berkeley consumers have understood the compelled disclosure, or evidence showing that sales of cell phones in Berkeley were, or are likely to be, depressed as a result of the compelled disclosure.
Based on the foregoing, we conclude that CTIA has little likelihood of success on its First Amendment claim that the disclosure compelled by the Berkeley ordinance is unconstitutional.
2. Preemption
a. Conflict Preemption
“Federal preemption occurs when: (1) Congress enacts a statute that explicitly preempts state law; (2) state law actually conflicts with federal law; or (3) federal law occupies a legislative field to such an extent that it is reasonable to conclude that Congress left no room for state regulation in the legislative field.” Chae v. SLM Corp.,
“Conflict preemption is implicit preemption of state law that occurs where there is an actual conflict between state and federal law.” McClellan v. I-Flow Corp.,
b. Telecommunications Act of 1996
“Preemption analysis *start[s] with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.’ ” City of Columbus v. Ours Garage and Wrecker Serv., Inc.,
The FCC’s organic statute is the Telecommunications Act of 1996 (“the Act”), 110 Stat. 56. Legislative hearings, as well as the Act itself, show that Congress desired “uniform, consistent requirements, with adequate safeguards of public health and safety” in nationwide telecom services. See H.R. Rep. No. 104-204, 94 (1996). The Act delegated to the FCC the authority “to ‘make effective rules regarding the environmental effects of [RF] emissions.’ ” Farina v. Nokia Inc.,
The centerpiece of CTIA’s argument is that the FCC does not compel cell phone manufacturers to provide information to consumers about SAR limits on RF radiation exposure. CTIA did not make this argument in the district court. Indeed, it conceded in its briefing in the district court that the FCC did so require. See, e.g., Plaintiffs Reply in Support of Motion for a Preliminary Injunction at 12 (“The manner in which Berkeley requires CTIA’s members to deliver Berkeley’s message— at the point of sale, rather than in a user manual — also distinguishes the Ordinance from the FCC’s requirements.”) (emphasis added). CTIA made this argument for the first time in its Reply Brief in this court, and it repeated the argument during oral argument to our panel.
Because CTIA conceded the point in the district court and made its argument to the contrary only before us (and even then only in its Reply Brief and during oral argument), it is waived. See Conn. Gen. Life Ins. Co. v. New Images of Beverly Hills,
Specific information must be included in the operating manuals to enable users to select body-worn accessories that meet the minimum test separation distance requirements. Users must be fully informed of the operating requirements and restrictions, to the extent that the typical user can easily understand this information, to acquire the required body-worn accessories to maintain compliance .... All supported body-worn accessory operating configurations must be clearly disclosed to users, through conspicuous instructions in the user guide and user manual, to ensure unsupported operations are avoided.
In re Exposure Procedures and Equipment Authorization Policies for Mobile and Portable Devices, FCC Office of Engineering and Technology Laboratory Division § 4.2.2(d) at 11 (Oct. 23, 2015) (“FCC Exposure Procedures”) (emphases added). The FCC document containing this language “is one of a collection of guidance publications referred to as the published RF exposure KDB procedures.” Id. § 1 at 1 (emphasis in original). The document specifies that “[a]pplications for equipment authorization must meet all the requirements described in the applicable published RF exposure KDB procedures.” Id. § 2 at 3 (emphasis in original). That is, in order for a cell phone to be authorized by the FCC for consumer use, it must satisfy the requirements outlined in FCC Exposure Procedures.
c. Likelihood of Success
Given the FCC’s requirement that cell phone manufacturers must inform consumers of “minimum test separation distance requirements,” and must “clearly disclose[]” accessory operating configurations “through conspicuous instructions in the user guide and user manual, to ensure unsupported operations are avoided,” we see little likelihood of success based on conflict preemption. Berkeley’s compelled disclosure does no more than to alert consumers to the safety disclosures that the
B. Irreparable Harm
Irreparable harm is relatively easy to establish in a First Amendment case. “[A] party seeking preliminary in-junctive relief in a First Amendment context can establish irreparable injury ... by demonstrating the existence of a color-able First Amendment claim.” Sammartano v. First Judicial District Court,
“[T]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Id. (citing Elrod v. Burns,
We conclude similarly that there has been no irreparable harm based on preemption.
C. Balance of the Equities
A court must “balance the interests of all parties and weigh the damage to each” in determining the balance of the equities. Stormans, Inc. v. Selecky,
CTIA asserts that implementing the ordinance will cause its members substantial economic harm and violate their First Amendment rights. We have concluded that CTIA’s First Amendment claim is unlikely to succeed, and the record provides no evidence to support a finding of economic or reputational harm to cell phone retailers. However, CTIA relies on Pacific Gas & Electric Co. v. Public Utilities Commission of California,
Berkeley properly asserts that it has a substantial interest in protecting the health of its citizens. CTIA, on the other hand, has failed to demonstrate any hardship tipping the balance in its favor. We conclude that the balance of the equities favors Berkeley.
D. The Public Interest
“The public interest inquiry primarily addresses impact on non-parties rather than parties. It embodies the Supreme Court’s direction that[,] in exercising their sound discretion, courts of equity should pay particular regard for the public consequences in employing the extraordinary remedy of injunction.” Bernhardt v. Los Angeles Cty.,
“Protection of the robust and free flow of accurate information is the principal First Amendment justification for protecting commercial speech, and requiring disclosure of truthful information promotes that goal.” Nat’l Elec. Mfrs. Ass’n,
Conclusion
Our assessment of the probability of CTIA’s success on the merits, the likelihood of irreparable harm, the balance of the hardships, and the public interest lead us to conclude that the district court did not abuse its discretion in denying preliminary injunctive relief to CTIA. Accordingly, the district court’s order denying such relief is
AFFIRMED.
Dissenting Opinion
dissenting in part:
The majority interprets the sentences in Berkeley’s forced disclosure statement one at a time and holds that each is “literally true.” But consumers would not read those sentences in isolation the way the majority does. Taken as a whole, the most natural reading of the disclosure warns that carrying a cell phone in one’s pocket is unsafe. Yet Berkeley has not attempted to argue, let alone to prove, that message is true.
It is clear that the First Amendment prevents the government from requiring businesses to make false or misleading statements about their own products. See Video Software Dealers Ass’n v. Schwarzenegger,
I
Berkeley’s ordinance requires stores selling cell phones, to provide a disclosure stating:
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. Refer to the instructions in your phone or use manual for information about how to use your phone safely.
Berkeley Mun. Code § 9.96.030(A) (2015).
The majority parses these sentences individually and concludes that each is “literally true.” In my view, this approach misses the forest for the trees. On its face, the disclosure begins and ends with references to safety, plainly conveying that the intervening language describes something unsafe. Indeed, the disclosure directs consumers to their user manuals for instructions on “how to use your phone safely.” The message of the disclosure as a whole is clear: carrying a phone “in a pants or shirt pocket or tucked into a bra” is not safe. Yet that implication is a problem for Berkeley because it has not offered any evidence that carrying a cell phone in a pocket is in fact unsafe. Instead, it has expressly denied that the required disclosure conveys that message. I disagree.
Berkeley insists the ordinance “rests exclusively upon existing FCC regulations.” But those regulations communicate something far different than does the ordinance. The FCC guidelines make clear that they are designed to incorporate a many-fold safety factor, such that exposure to radiation in excess of the guideline level is considered by the FCC to be safe:
Our current RF exposure guidelines ... include[e] a significant “safety” factor, whereby the exposure limits are set at a level on the order of 50 times below the level at which adverse biological effects have been observed in laboratory animals as a result of tissue heating resulting from RF exposure. This “safety” factor can well accommodate a variety of variables such as different physical characteristics and individual sensitivities— and even the potential for exposures to occur in excess of our limits without posing a health hazard to humans.
In re Reassessment of FCC Radiofrequency Exposure Limits and Policies, 28 FCC Red. 3498, 3582 (Mar. 29, 2013) (emphasis added). There is thus no evidence in the record that the message conveyed by the ordinance is true.
The First Amendment clearly does not permit the government to force businesses to make false or misleading statements about their products. In Video Software Dealers, we considered a challenge to a California law requiring that “violent” video games be labeled with a sticker that said “18” and preventing the sale or rental of violent video games to minors.
There are downsides to false, misleading, or unsubstantiated product warnings. Psychological and other social science research suggests that overuse may cause people to pay less attention to warnings generally: “[A]s the number of warnings grows and the prevalence of warnings about low level risks increases, people will increasingly ignore or disregard them.” J. Paul Frantz et al., Potential Problems Associated with Overusing Warnings, Proceedings of the Human Factors & Ergonomics Soc’y 43rd Ann. Meeting 916, 916 (1999). Relatedly, “[wjarnings about very minor risks or risks that are extremely remote have raised concerns about negative effects on the believability and credibility of warnings.... In essence, such warnings represent apparent false alarms as they appear to be ‘crying wolf.’ ” Id. at 918; see also David W. Stewart & Ingrid M. Martin, Intended and Unintended Consequences of Warning Messages: A Review and Synthesis of Empirical Research, 13 J. Pub. Pol’y & Marketing 1, 7 (1994). If Berkeley wants consumers to listen to its warnings, it should stay quiet until it is prepared to present evidence of a wolf.
Notes
. I agree with the majority’s preemption analysis so dissent only from sections IV.A. 1., IV.B., IV.C., and IV.D. of the majority opinion.
. Because even under Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio,