Ctia - the Wireless Ass'n v. City of Berkeley

H05 effectively rendered unavailable were agree. actions. The state

defendants’ We evidentiary hearing court held an

habeas improperly

and found that defendants timely to process griev-

failed Andres’ filed present

ance. Under the circumstances

here, Andres his available exhausted ad- suit, filing prior

ministrative remedies McKinney. Ross

thereby satisfying prison respond officials fail to a

When grievance a reasonable

prisoner’s within

time, prisoner is deemed to have ex- administrative available

hausted remedies PLRA. meaning

within of the We re- the district dismissal of An-

verse court’s

dres’ excessive force claim failure to

exhaust, judgment vacate the and remand further proceedings.

Appellees appeal. shall bear the costs on

VACATED and REMANDED.

CTIA - THE ASSOCI WIRELESS

ATION, Plaintiff-Appellant,

v. BERKELEY, CALIFORNIA;

CITY OF Daniel, Manager

Christine

Berkeley, California, in her official

capacity, Defendants-Appellees.

No. 16-15141 Appeals,

United States Court

Ninth Circuit.

Argued September and Submitted Francisco,

2016 San California April

Filed

H07 Theodore (argued), Helgi B. Olson C. Walker, Huston, Michael R. and T. Jacob Spencer, LLP, Gibson Dunn & Crutcher D.C.; Washington, Lipshutz Joshua S. Dick, Joshua D. Dunn Gibson & Crutcher LLP, Francisco, California; San for Plain- tiff-Appellant. Lessig,

Lester Lawrence III (argued), Massachusetts; Cambridge, Amanda Sha- nor, Haven, Connecticut; New Iyen- Savith Cowan, gar, Deputy City Attorney; Zach City Attorney; Berkeley City Attorney’s Office, California; Berkeley, for Defen- dants-Appellants.

Robert Corn-Revere and Ronald G. Lon- don, LLP, Wright Davis Tremaine Wash- about the phone purchasers cell D.C., spective The Asso- for Amicus Curiae ington, Advertisers, Inc. radio-frequency radi- government’s ciation of National federal relevant to cell exposure guidelines ation Illinois; Aaron Co- Kyle, Chicago, Selena Purpose,” “Findings phone use. Under D.C.; Ami- as and for Washington, langelo, provided: the ordinance Defense Natural Resources cus Curiae Council. testing of cell Requirements for the A. Wise, Attorney federal Deputy established phones were

R. Matthew General; Beekington, Supervising R. Mark in 1996. government General; Douglas J. Attorney Deputy requirements established B. These General; Woods, Attorney Senior Assistant (SAR) Rates” Absorption “Specific At- Kenealy, A. Chief Assistant Kathleen phones. cell California; Sacramento, General; as torney testing the SAR protocols C. The Attorney Amicus General and for Curiae person’s carried on a phones for cell of California. body they would be car- assumed FLETCHER, A. Before: WILLIAM away from the a small distance ried CHRISTEN, B. MORGAN clip, in a or belt which body, e.g., holster FRIEDLAND, T. Circuit MICHELLE at that time. practice the common was Judges. pro- these Testing phones of cell under generally has been conducted tocols by Judge FRIEDLAND

Dissent separation of 10- based on an assumed 15 millimeters. OPINION safety of their con- protect D. To FLETCHER, Judge: W. Circuit sumers, recommend that manufacturers CityA ordinance away carried from their cell prospective cell retailers to inform body, conjunction used in or be purchasers carrying hands-free devices. ways may cause them to phone in certain generally Federal Communications Commis- aware exceed E. Consumers are not exposure to radio-fre- guidelines sion safety of these recommendations. CTIA, a trade associa- quency radiation. Currently, it is much more common F. formerly Telephone as tion known Cellular pockets in phones to be carried cell Association, challenges the ordi- Industries than holsters or other locations rather First, argues it that grounds. nance on two resulting in much smaller clips, or belt Amend- the ordinance violates the First safety than the rec- separation distances Second, ordinance argues it ment. specify. ommendations preempted. may change their consumers G. Some injunc- preliminary a requested CTIA themselves protect behavior to better of the ordinance. staying tion enforcement they if were aware of and their children request, The district court denied CTIA’s safety recommendations. these interlocutory appeal. filed an and CTIA warnings H. the disclosures While pro- for further affirm and remand We phones generally cell accompany that ceedings. consumers not to wear them

advise Background I. and Procedural Factual bodies, pockets, e.g., their against etc., waistbands, these disclosures City Berkeley May In print, in fine warnings are often buried requiring phone an ordinance passed lan- easily written understood pro- are not retailers to disclose information

HH guage, only by or are looking placed accessible be poster on the and handout. The for the information on the device itself. provides ordinance that a phone retail- purpose Chapter I.The of this may is to er include additional information on assure that consumers have the informa- the poster or handout if it is clear that the they tion need to make their own choices additional information part is not of the about the extent and nature of their 9.96.030(B) (“The compelled § disclosure. exposure radio-frequency radiation. paper on which printed the notice is (2015). § Berkeley Mun. Code 9.96.010 contain other information in the discretion retailer, of the phone Cell long as as that challenged compelled CTIA disclo- information is distinct from the ordinance, notice lan- provision sure arguing (A) guage required by that it violated the First subdivision of this Amendment and Section.”). preempted. was One sentence of the com- stated,

pelled disclosure potential “The challenged ordinance, CTIA the current greater risk is for children.” The district before, arguing, as it had the ordi- court held that this sentence preempt- was nance violates the First Amendment and is ed, it preliminary injunction issued a preempted. The district court noted that against enforcement of the ordinance. In preempted sentence had been removed 2015, Berkeley December re-passed the ordinance, from the previous- dissolved its offending ordinance without the sentence. ly injunction, entered and denied CTIA’s form, In compelled its current disclo- request for a preliminary injunction. new provision provides: sure CTIA filed an interlocutory appeal. A. A phone pro- Cell retailer shall buys vide to each customer who or leas- II.Jurisdiction and Standard of Review containing es a Cell a notice jurisdiction We have under 28 following language: U.S.C. 1292. We review a denial of a requires preliminary injunction for abuse of discretion. you provided following notice: In st. Cetacean Research v. Sea To safety, assure the Federal Govern- Shepherd Soc’y, Conservation ment that cell meet 2013). 940, 944 “An abuse of (RF) radio-frequency exposure guide- discretion occurs when the district court If you carry your phone lines. or use based ruling its on an erroneous view of pants pocket or shirt or tucked the law or a clearly erroneous assess into a bra when the is ON and ment of the evidence.” Friends the Wild network, connected to a you wireless (9th Weber, Swan v. 767 F.3d Cir. may exceed the guidelines federal for 2014) (citation quotation and internal exposure to RF radiation. Refer to the omitted). marks We will not reverse the your phone instructions in or user “got right,” manual for district court where it the law information about how to your phone safely. use even if we “would have at a arrived differ result,” long ent so as the district court did 9.96.030(A) (2015). Berkeley Mun. Code clearly err its factual determina The ordinance com- the McNair, tions. Lands Council v. pelled provided disclosure be on either a 2008) (en banc). 981, 987 prominently displayed poster no less than 11 inches with no smaller than 28- ½ III.Regulatory Background font, point or on a handout no than less by 8 inches with no The Federal 18-point smaller than Communications Commis- (“FCC”) logo font. The of the jurisdiction of must sion regulatory has as the rule adopting in the such from transmitting services United over 1996, after consulta- In extensive SAR limits: States. the issued a agencies, FCC

tion with other commenting parties, including Most Specific Absorp- limit the to designed rule safety agencies, Federal and health (“SAR”) radio-frequency of tion Rate the support the use of ANSI/IEEE (“RF”) FCC-regulated from radiation National Standards [American Institute/ transmitters, phones: including and Institute of Electrical Electronic action, amending we are By 1. this Engineers] limits for localized SAR guidelines adopt new and rules to our for (partial body) exposure evaluating evaluating for the environmen- methods low-power designed devices to be used (RF) radio-frequency radi- tal effects vicinity immediate in the the FCC-regulated from transmitters. ation body.... Therefore, in view the con- Maximum Permissible adopting areWe support in sensus and the the scientific (MPE) limits for electric and Exposure record, adopting the SAR we are limits strength power field and den- magnetic exposure the determination of safe for at fre- operating transmitters sity for designed low-power devices to be from kHz to ... from 300 100 GHz quencies vicinity used in immediate adopting limits local- are also We for body the 1992 upon based ANSI/IEEE body”) absorption that (“partial ized guidelines.... portable certain transmit- apply will to adopting The SAR limits we are will ... We believe that ting devices generally apply portable devices ... adopting protect we are will guidelines any that are be used with designed to exposure and workers public from part radiating of the structure of the RF potentially fields. harmful with the body device in direct contact reaching 2. In our decision on the body the user or within 20 cm of exposure guidelines RF adoption of new under of use. normal conditions For ex- carefully large we have considered ample, would apply this definition in this number of comments submitted telephones.... hand-held cellular particularly those sub- proceeding, Evaluating the In re Guidelines for Envi- by the U.S. Environmental Pro- mitted Radio-frequency ronmental Effects of Ra- (EPA), Agency tection the Food and (“FCC for diation Guidelines Radiofre- (FDA) Drug Administration and other ¶¶ 96-326, Radiation”), quency 62-63 FCC safety The agencies. federal health and added). 1,1996) (Aug. (emphases are adopting we are guidelines new substantially better-safe-than-sorry on the recommenda- The has a based agencies, we believe limits: policy respect tions of those SAR represent guidelines a consen- that these exposure ... intent of our limits agencies respon- sus view the provide cap protects is to that both federal relating public sible matters to the public based scientific consensus and safety and health. practical imple- allows for efficient Evaluating In the Envi- re Guidelines services. The pres- mentation of wireless Radio-frequency Effects of Ra- ronmental ent limit exposure Commission is a diation, Reg. 61 Fed. 41006-07 is, “bright-line so long rule.” That as added). 7,1996) (Aug. (emphases specified a exposure levels are below value, requirement limit there is no safety of concern for the of cell Out exposure.... further Our cur- users, rejected industry reduce phone the FCC an guidelines rent RF are an “low-power exposure to exclude devices” ex- proposal

H13 regulation, including of such a ample separation meet the minimum test factor, whereby “safety” significant requirements. distance be Users.must limits are set at a level exposure fully informed the operating require- of 50 level at order times below the restrictions, ments and to the extent biological adverse have which effects typical that the user can easily under- in laboratory observed animals as a been information, stand the to acquire the resulting from heating result tissue body-worn required accessories to main- exposure. RF tain compliance. Instructions on how place and orient a device in Radiofrequen body-worn In re Reassessment of FCC Policies, accessories, in cy Exposure Limits and 28 FCC accordance with the test (Mar. 29, 2013). results, Rcd. The FCC should also be included in the recognizes required margin its user supported body- instructions. All safety large: is accessory worn operating configura- users, clearly tions be [Exceeding

... limit does must disclosed to SAR conspicuous necessarily operation, through imply not unsafe instructions in the manual, imply do lower SAR “saf- quantities guide nor user user to ensure operation. set with a operations er” The limits were unsupported are avoided. factor, large safety to be well below a In re Exposure Equip- Procedures and unacceptable for tissue threshold rises ment Policies for Authorization Mobile and result, temperature. exposure As a well Devices, Engineer- Portable FCC Office of specified not above SAR limit should ing Technology Laboratory Division sum, In an unsafe condition.... create 4.2.2(d) (Oct. 2015) (“FCC § Exposure using body a against device without Procedures”) added). (emphasis Compli- generally will actual spacer a result requirement ance a with this disclosure is tested; below the maximum SAR SAR approval transmitting prerequisite for moreover, possibly a use that results in device the FCC. See id. at 1. non-compliance limit with the SAR following examples The are significantly should not be viewed with that comply user manuals with the FCC’s greater compliant concern than use. requirement: added). (emphasis at 3588 Id. Apple: ways compli- are two There to ensure SAR iPhone’s measurement ex- reducing ance SAR limits— exposure guidelines ceed the FCC of RF amount radiation from a transmit- operation positioned if body-worn less device, ting increasing the distance (5/8 inch) body than 15 mm from the the device and the Different between user. carrying your (e.g. when iPhone devices amounts low-power emit different pocket). radiation, of RF with the result manual, 3G http:// See iPhone distance minimum between the device and manuals.info.apple.com/MANUALS/0/MA compliance the user achieve with SAR 618/en_US/iPhone„3G_Important_ limits varies somewhat from to de- device Product_Information_Guide.pdf vice. that cell Samsung: user manuals contain information that users to ap- being exposed

alerts the minimum distances If is a risk from there (RF) propriate they using: the device are radio-frequency energy from do point at this we Specific includ- must information —and probably that there operating ed in the to enable know is—it manuals But, body-worn very you users to select if are concerned accessories small. 1114 Council, risks, Inc., v. avoiding potential even Winter Nat. Res. 555

about Def. 365, to you simple steps can take a few U.S. 129 S.Ct. L.Ed.2d 249 exposure. your (2008). RF minimize of stronger showing one ele “[A] may showing an ment offset a (cid:127) weaker spent amount time the Reduce other.” Alliance the Wild Rockies v. your phone; cell using (9th Cottrell, 1127, 1131 Cir. (cid:127) mode or a headset to speaker Use 2011). example, preliminary injunc For “a your more distance place between the tion could issue where likelihood of phone. cell head and the questions go success is such that ‘serious Samsung Common Phone Health See ing to raised the merits were and the Guide, Warranty http:// at Safety sharply in hardships tips [plain balance of www.samsung.com/us/Legal/PHONE-HS_ ” (quoting tiffs] favor.’ Id. at 1132 Clear GUIDE_English.pdf. Outdoor, v. Ange Channel Inc. Los LG: 2003)). les, F.3d highest SAR value for this model The when tested for at the ear phone use A. Likelihood of Success W/Kg (lg) and on is 1.08 when worn argu- merits-based CTIA makes two body, as described in this user the Berkeley against ments ordinance. W/Kg (body-worn is 0.95 guide, (lg) First, it argues differ that the ordinance violates among phone measurements models, Second, upon ac- the First it depending argues available Amendment: and FCC requirements). cessories that the preempted. ordinance is takeWe there be be- While differences arguments in turn. levels of

tween SAR various positions, they all meet 1. Amendment and at various First government requirement for safe underlying The disclosure at issue is an exposure. granted The has compels disclosure that the FCC cell Equipment Authorization for this phone provide manufacturers to con- with all phone reported model SAR However, sumers. has not CTIA sued in compliance levels evaluated as with Rather, Berkeley, FCC. CTIA has sued guidelines. RF emission the FCC SAR challenging Berkeley the disclosure com- on this information model is provide cell pels phone retailers to to the file the FCC and can found Berkeley same consumers. The ordinance Display Grant under section disclose, phone retailers to http://www.fcc.gov/oet/ea/fccid/ after form, summary the same information ID searching on FCC ZNFL15G. already requires consumers that the FCC Guide, 93, http:// See LG Sunrise User manufacturers to The disclose. www.lg.com/us/support/manuals- then directs consum- documents specific ers user manuals for more infor- mation.

IV. Discussion injunction must establish “A plaintiff seeking ^[1] a preliminary that he is a. Central Hudson or Zauderer likely to succeed on the merits, ^[2] that he parties agree Berkeley’s ordi- nance is regulation speech. of commercial likely irreparable harm in suffer absence preliminary relief, ^[3] Central Hudson Gas & Elec. Corp. v. Pub. N.Y., 557, 561, tips favor, in his Serv. Comm’n U.S. equities balance of and [4] (1980); injunction public that an is in the interest.” 65 L.Ed.2d 341 see

1H5 L.A., 703, 715 defendant Zauderer legal Hunt v. advertised ser 2011). However, they disagree vices to prospective Daikon Shield plain compliance about whether the ordinance’s in tiffs a number of newspapers. Ohio “ should with the First Amendment be ana- stated, alia, advertisement inter ‘The lyzed under Hudson or under Central cases are contingent handled on a fee basis Disciplinary Zauderer v. Counsel Office of of the amount If recovered. there is no Ohio, the 471 Supreme Court U.S. recovery, legal by no fees are owed our 626, (1985). 2265, L.Ed.2d 652 85 Zauderer, 631, clients.’” 471 U.S. at 105 S.Ct. 2265. disciplined Zauderer was under Hudson, gov Under Central the Ohio disciplinary or state bar rules on prohibit ernment restrict commer the ground cial speech misleading that is neither nor “decep advertisement was activity, long connected to unlawful as as rules, tive” meaning within the the id. at interest in governmental regulating the 633, 2265, 105 it S.Ct. because failed to 564, speech the is 477 U.S. at substantial. potential liability disclose “the client’s 106 restriction or prohibi S.Ct. 2686. The costs even if her suit were unsuccessful.” “directly govern tion must advance the Id. at 105 S.Ct. 2265. The Court noted asserted,” mental and must not interest that disciplinary required bar rules necessary is “more extensive than to serve in Zauderer to “include his advertising that 106 interest.” Id. at S.Ct. 2686. purely factual and uncontroversial infor interpret today, it Under Zauderer as we mation about the terms under which his government may compel truthful dis services Id. at will be available.” speech as long closure commercial as wrote, S.Ct. 2265. The Court “Ohio has not “reasonably is re compelled disclosure attorneys attempted prevent from con governmental lated” to a substantial inter veying public; information to the it has Zauderer, est. 471 U.S. S.Ct. only required provide them to somewhat 2265; see discussion infra. they might more information than other apply scrutiny intermediate We 650, 105 wise be Id. at present.” inclined by Hudson in test mandated Central com Supreme S.Ct. 2265. The Court declined to speech where speech mercial cases is re test: apply the Central Hudson ground on the prohibited, stricted or Because the of First Amend- extension scrutiny appro such cases intermediate protection speech ment to commercial priately interests of protects the both the justified by the principally value to con- (the (the seller) speaker and the audience speech of the such sumers information purchaser). But size does not fit all in one provides, constitutionally appellant’s In Central speech commercial cases. Hud protected providing any in not interest itself, cautioned, Court Supreme son information is mini- particular factual protection particular “The available unjustified mal .... recognize We turns on expression commercial the nature unduly or disclosure re- govern and of burden some expression both of the by regulation.” quirements might mental interests its offend the First served 563, 106 Hudson, Central U.S. at chilling S.Ct. protected Amendment com- 2686. mercial But we hold that an speech. adequately rights pro- advertiser’s are Hudson, years

Five Central after require- long tected as as Court held that Hudson’s interme- Central reasonably are related to the ments scrutiny apply diate to com- test does deception preventing State’s interest pelled, pro- as distinct from restricted or hibited, speech. Zauderer, commercial In consumers. (in (internal which Zauderer and Milavetz citation of both 105 S.Ct. 2265

Id. at omitted). Milavetz, “preventing repeated Mi ZaudereYs Gallop & the Court See also 229, States, had been de- lavetz, deception” language) 559 there P.A. v. U.S. United (2010) 1324, subject of 253, speech: L.Ed.2d 79 “Given the both ceptive cases, using “pre its natural for the Court to ex- (following Zauderer it was language language). rule in such terms. The venting deception” press the descriptive of the simply could have been The Zauderer Test b. applied circumstances to which Court Interest Meat, i. Substantial Governmental Am. 760 F.3d at 22. its new rule[J” concluded, language “The The D.C. Circuit excep- that the Zauderer CTIA contends justified, its approach Zauderer with which rule of Central Hudson general tion to the broadly than the ... far more sweeps apply in this case because does remedying deception.” in Id. interest ordi- compelled speech deception of con- nance does not prevent In Electrical National Manufacturers time we have had This is the first (2d sumers. Sorrell, 272 F.3d 104 Association v. squarely in circuit to address occasion this 2001), required a Vermont statute Cir. whether, in of a the absence question mercury-containing manufacturers rationale, the Zau- prevention-of-deception products pack to label their products applies. test eompelled-diselosure derer prod Cf. to inform consumers that the aging v. Dealers Ass’n Schwar- Video mercury instructing ucts contained Software (9th 2009) 950, 967 Cir. zenegger, 556 F.3d disposed products them that the should compelled disclosure on video (invalidating recycled as hazardous waste. Id. at of or noting that the disclosure game packaging, The Circuit held that the com 107. Second convey a false state- “arguably now would by a supported disclosure was “sub pelled illegal conduct is when it ment that certain in human protecting stantial state interest not, legitimate has no and the State Id. at 115 n. health and the environment.” to affix false infor- reason to force retailers Zauderer, recognized court Citing 6. of our products”). mation on their Several “pre did not compelled disclosure ” circuits, however, have answered sister deception.’ vent confusion or ‘consumer They unanimously con- question. this have Sorrell, It 272 F.3d at 115. nonetheless exception cluded that the Zauderer the disclosure as not “inconsistent upheld speech applies even circum- compelled underlying First Amend policies with the pro- the disclosure does not stances where speech.” of commercial Id. protection ment speech. against deceptive tect accurate, factu disclosure of “[MJandated al, not offend commercial information does De- In Meat Institute v. U.S. American pro values of the core First Amendment (D.C. Agriculture, 760 F.3d 18 partment of or moting exchange efficient of information 2014) (en banc), Department Agri- Cir. liberty individual interests.” Id. protecting required identification regulation culture 114; N.Y. also N.Y. St. Rest. Ass’n v. see country origin packaging on the of the (2d Health, 114, City Bd. 556 F.3d products. meat Id. at 20. The of meat and 2009) (“Zauderer holding was broad Cir. s a federal statute regulation implemented encompass nonmisleading dis enough country-of-origin labeling. requiring See requirements.”); Discount Tobacco closure 1638a. The D.C. Circuit U.S.C. States, 674 City Lottery, Inc. v. United & should not be read to held that Zauderer 2012) (upholding F.3d 556-58 Cir. only government- where apply to cases federally required warnings ciga health de- compelled speech prevents or corrects cigarette and in advertise- packaging It that on the facts rette ceptive speech. noted

1H7 ments, relying on the Purely Second Circuit’s ii. Factual Information Sorrell); opinion in Pharm. Mgmt. Care Court Zauderer noted that the (1st Rowe, Ass’n v. 429 F.3d 310 n.8 compelled that case was of 2005) (noting the court had found “purely factual and uncontroversial infor limiting application no cases of the Zau- Zauderer, mation.” 471 U.S. at compelled speech prevention derer test to not, however, S.Ct. 2265. The Court did deceptive or correction of advertising); cf. require in its constitutional test that the (3d Dwyer Coppell, v. 281-82 disclosed “purely information be factual 2014) (describing relying Cir. but not on and uncontroversial.” Some lower courts criterion). preventing-deception ZauderePs recited, discussion, have without “pure the ly factual and uncontroversial” language as agree our cir We sister part See, of the Zauderer e.g., test. Nat’l cuits that prevention under Zauderer the S.E.C., Ass’n v. 800 F.3d 541 of Mfrs. deception only gov consumer is not the (D.C. 2015) (“But Cir. whatever be ernmental may permissibly interest that complexities the of applying the standard by be compelled furthered commercial situations, in discrete as a matter of prece speech. any governmen We conclude that dent, an obligation in the commercial tal long interest will suffice so as it is sphere to ‘purely disclose factual and un Meat, In substantial. American the D.C. controversial’ product information about a Circuit declined to decide whether the draws deferential First Amendment re governmental interest must be substan view.”); Grp., Inc. v. Jepsen, 764 Safelite tial, leaving open question the whether a (2d 2014) (“On F.3d Cir. a cursory might less-than-substantial interest suf review, precedent our arguably supports (“Be Meat, fice. See Am. 760 F.3d at 23 the district court’s conclusion that this law motivating cause the interest the 2013 simply requires accurate, disclosure of fac [country-of-origin] rule is a substantial information.”); tual Light Cent. Illinois Co. one, we need not decide a whether lesser Bd., v. Citizens Util. Zauderer”). interest could suffice under 1987) (“In Zauderer, the Court question We answer the avoided in Amer held that Ohio constitutionally could re Meat, holding ican that Zauderer requires quire attorney an to include in a commer compelled that the disclosure further advertisement, cial purely factual and un is, some substantial —that more than trivi controversial information about the terms governmental interest. Central Hud al— under attorney’s which the services are explicitly requires son that a substantial available.”). challenged interest be furthered a reg prohibiting ulation or restricting commer purpose Given that of the speech, cial nothing we see Zau- compelled provide tois accurate consumer, derer would allow a lesser to interest factual information to the we justify compelled commercial speech. agree any To compelled disclosure must use the words of However, the Second Circuit in “purely factual.” “uncontr Sorrell, the interest at stake must be oversial” this context refers to the factu more than disclosure, the satisfaction of mere “con al accuracy compelled of the curiosity.” Sorrell, sumer subjective 272 F.3d at 115 impact not to its on the audi n.6; Meat, see also Am. 760 F.3d at 23 ence. This is clear from Zauderer itself. (“Country-of-origin information has an required attorneys The State of Ohio to pedigree beyond historical that lifts it potential liability well disclose “the client’s ”). curiosity.’ ‘idle costs even if her suit were unsuccessful.” to RF By exposure limits on Zauderer, adopting 105 S.Ct. 2265. SAR U.S. radiation, in- charge to has furthered the attorneys the FCC permitted law Ohio advertising and safety after health and protecting clients for costs even terest on a their clients agreeing represent to It phone users in the United States. of cell losing suit. contingency-fee basis by adopting highly protec- a has done so the difference between Recognizing that limits on RF policy, setting tive low SAR might apparent not be fees and costs compelling manu- radiation clients, required attor- Ohio prospective information to cell facturers to disclose contingency fee neys disclose that allow them to avoid phone users that will require the client arrangement might still By its ordi- exceeding passing those limits. money attorney. This some pay nance, has furthered factually accurate. was required disclosure finding After that cell that same interest. may have caused con- That the disclosure largely are unaware of phone users by discouraging cus- troversy, example in their and of the information policy hiring lawyers who offered tomers from manuals, Berkeley City Council user because arrangements contingency-fee Berkeley in to compel to retailers decided by harming or they feared “hidden costs” form, the same infor- provide, summary lawyers who offered reputation already requires that the cell mation FCC affect the arrangements, did not such fee provide to to those phone manufacturers analysis. What mattered was constitutional consumers, to direct those con- same provided accurate fac- that the disclosure manuals for more sumers to their user to the consumer. We tual information Deck, Jensen Ex. detailed information. See that Zauderer therefore conclude (survey) (reflecting majority A that a “purely the information be factu- only that that the persons surveyed were “aware al.” radiation tests to assure the government’s that a cell safety phones of cell assume Test Application c. of Zauderer against your phone would not be carried Zauderer, compelled dis Under held at body, but would instead be least complies speech of commercial closure body”). your to 15 millimeters from if First Amendment the informa with the strenuously that radio-fre- argues CTIA reasonably in the is related tion phones from cell has not quency radiation governmental interest and to a substantial to consumers. proven dangerous been before us is purely question is factual. The when Limiting published itself to research by speech compelled whether case, made in this CTIA is the record was this test. Berkeley ordinance satisfies out that there was pointing correct nothing then before the district court Reasonably i. Related to a Substantial showing prov- Interest that such radiation had been Governmental point. dangerous. But this is beside the en question pro There is no from cell The fact that RF radiation safety of consumers tecting the health and proven dangerous phones had not been See, governmental interest. is substantial known to the FCC 1996 when was well v. e.g., Posadas de Puerto Rico Assocs. radiation; limits to RF was adopted it SAR Rico, Puerto 478 U.S. Tourism Co. of it well known in 2013 when refused (1986) 2968, 92 L.Ed.2d 266 adopting cell from its rule phones exclude (“[H]ealth, safety, and welfare constitute[ ] limits; known in 2015 and was well interest”). SAR governmental a ‘substantial’ phone manufacturers required when it cell government Berkeley The federal exceeding avoid consumers how to that interest. to tell sought have both further

1H9 SAR limits. After extensive consultation exposure to RF radiation. Refer to the agencies federal expertise with about your instructions in phone or user radio-frequency the health effects of radia- manual for information about how to tion, decided, despite the lack of your phone use safely.

proof dangerousness, poli- best 9.96.030(A) (2015). Mun. Code cy to adopt large was SAR limits with a The text of compelled disclosure is margin safety. literally true. We take it sentence sen- The FCC concluded that requiring cell tence: phone manufacturers to inform consumers (1) “To safety, assure the Federal Gov- in their users manuals of limits SAR ernment requires that phones cell meet radiation, RF and to tell them how to (RF) radio-frequency exposure guidelines.” exposure, avoid excessive furthered the This statement is true. As recounted government’s protecting federal interest in above, beginning in 1996 the gov- federal their health and safety. of Berke- ernment RF exposure has set guidelines ley concluded that largely consumers were with which cell must comply. unaware of the contents of their users Agreeing manuals. with the FCC that the (2) you carry “If your or use information about SAR limits and methods pants in a or pocket shirt or tucked into a avoiding exposure impor- excessive bra when the phone is ON and connected tant, Berkeley requires retailers network, to a you may wireless exceed the provide some that same information guidelines federal for exposure to RF radi- and to consumers direct them to their ation.” This statement is also true. The user manuals for farther details. We are has FCC established SAR limits for RF position disagree not in a with the con- radiation, and has concluded that maintain- Berkeley clusions of FCC and that this ing separation a certain between a cell compelled disclosure “reasonably is relat- phone and user’s body protect the consum- protection safety ed” to of the health and exceeding ers from these limits. of consumers. (3) “Refer to your the instructions in phone or

ii. user manual for information Purely Factual your phone about how to use safely.” This argues Berkeley’s CTIA that com sentence is an instruction rather than a pelled “purely disclosure is not factual” However, direct factual statement. it meaning within the of Zander er. We dis clearly implies a factual statement that agree. your “information about how to use phone reader, For the convenience of the we safely” in compliance with the FCC’s RF again provide the full text of compelled the “exposure guidelines” safety,” “to assure disclosure: may phone be found either in a cell or City Berkeley requires you that too, statement, user manual. This implied provided be the following notice: is true. safety, To assure the Federal Govern- course, recognize, We that a state- requires ment phones that cell meet may ment literally true but nonetheless (RF) radio-frequency exposure guide- and, sense, misleading in that That untrue. you carry lines. If or your phone use argues argues is what CTIA here. CTIA pants in a or shirt pocket or tucked that compelled the disclosure is inflamma- phone into a bra when the is ON and network, tory you misleading, connected to a and and that it is there- wireless may exceed guidelines the federal for fore not its “purely factual.” CTIA bases users, clearly through conspic- the ordi- disclosed to solely on the text of argument guide uous instructions in the user and nance. manual, unsupported oper- user to ensure re argues that Ordinance “[t]he CTIA avoided.”) added). (emphasis ations are inflammatory warning about un an quires risks”; safety Ordi “[t]he founded The third sentence tells consumers to clearly deliberately suggests nance fur- consult their user manuals to obtain energy guide testing RF that the federal is, information —that ther to obtain limit) (the is the demarcation line SAR very information the FCC ‘safety phones, for cell such that point of provide manufacturers to “con- energy that limit to RF above ‘exposure’ spicuous instructions” in user manuals. hazard”; safety and that “[t]he creates a Further, radiation,” phrase “RF misleading for the additional Ordinance is sentence, precisely used in the second is inflammatory term that it uses the reason used, phrase beginning has ‘radiation,’ fraught negative is with which radio-frequency to refer to emissions associations, in order to stoke consumer phones. from cell See FCC Guidelines argues further anxiety.” CTIA ¶ 1, at frequency supra Radio Radiation “fraught “RF radiation” is phrase (RF) radiation”). (“radio-frequency We associations,” that it is used in the negative not fault Berkeley using do the term “in order to stoke compelled disclosure “RF to cell referring radiation” when anxiety,” that it is therefore consumer only it is not phone emissions when factual.” “purely term, technically correct but also the term differently. The read the text first We the FCC itself to refer to such emis- uses phones tells consumers that cell sentence sions. exposure federal “RF required are meet Finally, note that the we ordi- safety.” guidelines” “[t]o order assure nance allows a cell retailer to add to inflammatory, this statement Far from compelled disclosure. If a retailer is reassuring. It largely assures consumers concerned, be, as CTIA contends it should they buy that the cell are about to that the term “RF radiation” is inflamma- federally imposed safety or meet lease tory misleading, the retailer add guidelines. compelled any to the disclosure further The second sentence tells consumers statement it sees fit to add. See exceeding in order to avoid what to do 9.96.030(B) (“The § paper on which the guidelines. This statement federal printed may notice is contain other infor- reassuring, hardly but it is inflammato- be mation in the discretion of the Cell ry. provides summary It in form informa- retailer[.]”). put nothing CTIA has in the that tion that the FCC has concluded con- any Berkeley record to indicate that retail- should know in order to ensure sumers useful, necessary, it or er has felt even Indeed, safety. specifically their the FCC explanatory add information about the na- pro- manufacturers to pre- ture of RF radiation. Nor has CTIA vide this information to consumers. See any sented evidence in the district court 4.2.2(d) Exposure “FCC Procedures” Berkeley have un- showing how consumers (“Specific information must be included disclosure, or compelled derstood the evi- operating the manuals to enable users to showing that sales of cell dence body-worn that meet the select accessories were, be, Berkeley likely or de- are separation require- minimum test distance compelled as a result of the disclo- pressed supported body-worn ments .... All acces- sory must operating configurations be sure.

H21 d. Likelihood of Success tion. CTIA that Berkeley’s contends com- pelled disclosure an impermissible creates foregoing, Based the we conclude by requiring obstacle more disclosure that CTIA has little of success likelihood is required by than Crosby FCC. See First claim on its Amendment that Foreign Council, v. Nat’l Trade 530 U.S. compelled by ordi- 363, 373, 2288, 120 nance is S.Ct. 147 unconstitutional. L.Ed.2d 352

(2000) (finding preemption where a chal- 2. Preemption lenged state law “stands as an obstacle to accomplishment and execution of the Preemption a. Conflict purposes full objectives Congress.”) “Federal preemption occurs when: (internal omitted). quotation marks (1) Congress explicit enacts a statute that (2) law; ly preempts state state law actual b. Telecommunications Act of 1996 (3) law; ly conflicts with federal or federal occupies legislative law a field to such an “Preemption analysis with *start[s] that it extent is reasonable to conclude assumption the historic police Congress left no regu room state powers of the States were not to super legislative lation Chae v. field.” SLM seded the Federal Act unless that was (9th 2010) 936, Corp., 593 F.3d 941 Cir. the clear and manifest purpose of Con ” (internal omitted). quotation marks CTIA gress.’ City Columbus v. Ours Garage that Berkeley’s compelled contends disclo Serv., Inc., 438, 424, and Wrecker 536 U.S. sure is invalid conflict preemp because of 2226, 122 S.Ct. (quoting 153 L.Ed.2d 430 tion. Medtronic, Lohr, 485, Inc. v. 518 U.S.

“Conflict preemption implic (1996)). 135 L.Ed.2d 700 preemption it of state law that occurs intent, “Congressional therefore, is the ul where there is an actual conflict between preemption timate touchstone of analysis.” and federal state law.” McClellan v. I- Engine Quali S. Ass’n v. Coast Air Mfrs. (9th Corp., Flow 776 F.3d 1039 Cir. ty Mgmt. Dist., (9th F.3d 2015) (citations quotation and internal 2007) (citing Cir. Tocher v. Santa omitted). Congress marks charges “When Ana, 2000)). an with agency balancing competing ob organic FCC’s statute is the Tele- it jectives, agency intends to use its (“the Act”), communications Act judgment weigh reasoned the relevant Legislative hearings, 110 Stat. 56. as well considerations and determine how best to itself, as the Act that Congress show de- prioritize objectives. Allowing those a “uniform, requirements, sired consistent impose state law to a different standard adequate safeguards public health [impermissibly] permits re-balancing safety” in nationwide telecom services. objectives.” Inc., those v. Nokia Farina 104-204, (1996). Rep. See H.R. No. 94 The 97, (3d 2010). F.3d 625 123 Cir. Conflict delegated Act authority to the FCC the “to preemption “compli arises either when regarding ‘make effective rules the envi- regula ance with both federal state and ” ronmental effects of emissions.’ [RF] physical is a ... impossibility tions or Inc., (3d Farina v. Nokia 106 state an when law stands as obstacle to 2010) 56, 152). (quoting Spe- Cir. 110 Stat. accomplishment the and execution of the cifically, only “the was tasked not FCC purposes objectives Congress.” full and of (citations McClellan, protecting the health and safety of 776 F.3d at 1039 omitted). public, ensuring the but quotation rapid internal also with the marks We are development concerned here with preemp- “obstacle” of an efficient and uniform 1122 separation at 125. This the cre- the minimum test Id. led to distance

network]].] regulatory requirements. ation of the measures described must be fully Users in- supra. requirements operating of the formed restrictions, extent to the centerpiece argu CTIA’s typical easily user can understand this does compel ment is that the FCC information, acquire to the required provide to phone manufacturers informa body-worn to accessories maintain com- about SAR limits on RF tion to consumers pliance body-worn All supported .... ac- exposure. radiation CTIA did not make cessory configurations operating must Indeed, in the district argument this court. users, clearly through disclosed briefing it in its in the district conceded in conspicuous instructions the user See, did so require. court that the FCC manual, guide unsup- and user ensure Support in e.g., Reply Plaintiffs of Motion ported operations are avoided. (“The Preliminary Injunction for a at 12 Berkeley requires manner in which CTIA’s In re Procedures and Exposure Equip- Berkeley’s message— to deliver members ment Authorization Policies for Mobile and sale, at rather in a point the than user Devices, Portable FCC Office of Engineer- distinguishes manual —also the Ordinance ing Technology Laboratory Division requirements.”) (emphasis from the FCC’s (Oct. 2015) (“FCC 4.2.2(d) § at 11 Ex- added). argument this CTIA made for the Procedures”) added). posure (emphases court, Reply in its Brief in first time this containing The FCC document this lan- repeated argument during and it the oral guage one of a collection of guidance “is argument panel. to our publications published as the referred to exposure § RF KDB procedures.” Id. 1 at point Because CTIA conceded the 1 (emphasis original). in The document court and argument the district made its specifies “[a]pplications equipment (and contrary only to the before us even authorization must meet all the require- only Reply during then in its Brief and ments applicable in the publish- described it is argument), oral waived. Conn. See RF procedures.” ed KDB 2 exposure Id. Images Gen. Ins. Co. v. New Bever Life (9th 2003) Hills, original). is, at 3 ly (emphasis F.3d That Cir. (“This for the order issue is raised first time on for a cell be authorized use, appeal, and we therefore treat issue as it satisfy FCC for consumer must waived.”); Bohn, States v. F.2d requirements United outlined in Expo- 1992) (“we ordinarily sure Procedures. arguments decline to consider raised for Likelihood of Success c. brief’). in a reply first time But we requirement the FCC’s Given if note that we were consider CTIA’s cell phone manufacturers must inform con merits, argument reject we would separation sumers “minimum test dis Beginning it. in October the FCC tance requirements,” “clearly and must in required manufacturers to accessory operating configura disclose[]” form separation consumers minimum “through conspicuous tions instructions in distances in user manuals! quoted We manual, the user guide and user to ensure supra passage, relevant 1113. For the avoided,” reader, unsupported operations are we of the much repeat convenience we here: see little likelihood of success based on passage Berkeley’s conflict preemption. compelled information must in Specific be included does no more than to con operating manuals to enable users to alert body-worn safety meet sumers disclosures select accessories that to the

H23 freedoms, requires, plaintiff and to direct consumers to sive a is an entitled to federally in compelled injunction instructions their on a even lesser of showing meritoriousness.”). n providing specific manuals informa- Further, user there noth- expo- about how tion to avoid excessive ing in showing the record harm to CTIA Far from federal conflicting sure. law through or its members actual or threat- policy, comple- ordinance ened reduction sales of cell phones ments reinforces it. by caused the disclosure compelled by the ordinance. Irreparable B. Harm similarly We conclude there has relatively Irreparable harm is irreparable been no harm pre- based on to easy establish a Amendment First emption. party in- seeking preliminary “[A] case. Amendment junctive relief in a con First Equities C. Balance of the injury can establish ... irreparable text A must court “balance the inter by demonstrating the of a color- existence parties weigh ests of all to damage First Amendment claim.” able Sammarta each” in determining the balance of the Court, no v. First Judicial District 303 Stormans, equities. Inc. v. Selecky, 586 (9th 2002) (citation 959, 973 F.3d Cir. omit (9th 2009). 1109, 1138 F.3d Cir. ted), abrogated grounds on other Win Council., implementing CTIA asserts that Natural 555 ter v. Res. U.S. Def. 7, 22, will 129 S.Ct. 249 ordinance cause its 172 L.Ed.2d members sub (2008).We that it has stantial harm nonetheless conclude economic and violate their established here. rights. not been First Amendment We have con cluded that CTIA’s First Amendment loss of First Amend “[T]he succeed, unlikely claim is to and the record freedoms, periods minimal ment even provides finding to support no evidence a time, irrepa unquestionably of constitutes reputational or economic harm to cell Burns, v. injury.” (citing Id. rable Elrod However, CTIA on retailers. relies 347, 373, 427 U.S. 96 S.Ct. 49 Electric Co. v. Gas & Public Utili Pacific (1976)). But the mere asser L.Ed.2d California, ties Commission 475 U.S. of First does not rights tion Amendment 15-16, (1986), L.Ed.2d automatically irrepa require finding a that, to while argue disclosures injury. It is the uncon “purposeful rable Amendment, violate the First the ordi suppression speech [that] stitutional imposes nance an “undue burden” on irreparable prelimi harm for constitutes it signifi CTIA’s members because creates injunction nary purposes.” Book Goldie’s “pressure respond,” cant and that this Ct., Superior v. store 739 F.2d pressure is “antithetical the free discus 1984). already We have concluded First sion that the Amendment seeks compelled the Zauderer test for dis under showing any foster.” There is no such that, us, before closure the record ordinance pressure. The CTIA’s Berkeley’s with the complies ordinance members inform their customers that Sammartano, Amendment. First promulgated regulations the FCC has con (“[T]he granting pre at 973-74 test for cerning RF emissions and to advise cus liminary injunction ‘a continuum tomers to refer to their user manuals for the required showing which of harm varies To the extent that a cell inversely more information. required showing with the meritoriousness,’ is dissatisfied with the when the harm claimed retailer dis written, infringement expres- append serious it can additional is a on core closure as Ordinance, know about those disclosures.” does not Berkeley disclosures. 2015). 9.96.030(C) 26, Deck, (survey)). has Ex. A Be- (May (citing CTIA Jensen any showing furthers, that nothing in the record than hin- put rather cause “disclosure pres- has felt Berkeley phone retailer ‘marketplace the efficiency ... the ” ders sured, advantage to take sought or has ideas,’ is in we hold that the ordinance allowing it the ordinance provision the injunction and that an public interest it de- any to make additional Nat’l Elec. harm that interest. See would Milavetz, 559 U.S. sires. See also Ass’n, 272 F.3d at 114. Mfrs. (“not ... preventing [the] 130 S.Ct. 1324 any additional informa- conveyance] of Conclusion of a of the essential features tion” is one probability of assessment of the Our disclosure). Zauderer merits, the likeli- success on the CTIA’s a that it has Berkeley properly asserts harm, irreparable the balance of hood of protecting in interest substantial interest lead hardships, public and the CTIA, on the other of its citizens. health did us conclude that the district court hand, any hard- has failed to demonstrate denying prelimi- in not abuse its discretion in its favor. We ship tipping the balance According- injunctive relief to CTIA. nary the equities that the balance of conclude denying court’s order such ly, the district Berkeley. favors relief is AFFIRMED. Interest D. The Public inquiry public “The interest FRIEDLAND, Judge, Circuit non-parties impact addresses primarily dissenting part: in It embodies the Su parties. rather than majority interprets the sentences that[,] in exercis direction preme Court’s one Berkeley’s forced disclosure statement discretion, equity sound courts ing their “literally and holds that each is at a time pay particular regard public for the should not read those true.” But consumers would employing the extraordi consequences way majority in isolation the sentences remedy injunction.” Bernhardt v. nary whole, as a the most natural does. Taken 920, 931-32 Angeles Cty., 339 F.3d Los carry- of the disclosure warns that reading (internal (9th 2003) quotation marks Cir. pocket in one’s is unsafe. ing omitted) v. (citing Weinberger citation attempted argue, has not Yet Romero-Barcelo, 305, 312, 102 456 U.S. prove, message is true. let alone (1982)). L.Ed.2d 91 We S.Ct. an in the district court that agree with First It is clear that Amendment junction injure public interest would requiring from prevents government information. having a free flow of accurate misleading to make false or businesses products. about their own See statements of the robust and free “Protection Ass’n v. Schwar Video Dealers Software princi is the flow of accurate information 2009), zenegger, 556 F.3d justification pro First Amendment pal Brown v. Entm’t Merchs. sub nom. requiring aff'd tecting speech, commercial Ass’n, 564 U.S. promotes information disclosure of truthful (2011). least on L.Ed.2d 708 Because—at Ass’n, 272 Nat’l Elec. goal.” Mfrs. is what Berke the current record —that found that at 114. The district court F.3d “ do, I believe the ley’s ordinance would disclosures while ‘accurate and balanced likely the First Amend ordinance violates already energy RF are avail regarding pre- therefore should have been public ment and ... there is evidence able’ H25 enjoined.1 liminarily See Klein v. message The of the disclosure as a whole Clemente, 1196, carrying San is clear: a phone 1207-08 “in a pants or 2009) (“Both pocket shirt or court tucked into a this and the Su bra” is not safe. Yet that implication is a preme problem for repeatedly Court have held that Berkeley because it has not any offered freedoms, loss of First Amendment ‘[t]he evidence carrying a in a time, periods for even minimal unques ” pocket Instead, fact unsafe. it has tionably irreparable injury.’ constitutes expressly denied that required disclo- Burns, 347, 373, (quoting Elrod v. 427 U.S. conveys sure that message. disagree. I 2673, (1976))). 96 49 S.Ct. L.Ed.2d 547 Berkeley insists the ordinance “rests ex- I clusively upon existing regulations.” FCC regulations But those Berkeley’s communicate some- ordinance stores thing far different than does the ordinance. selling phones, provide a disclosure guidelines The FCC make clear they stating: designed are incorporate many-fold a safety, To assure the Federal Govern- factor, safety such that exposure to radia- ment requires that cell meet ra- tion excess of guideline level is (RF) dio-frequency exposure guidelines. considered the FCC to be safe: If you carry your or use a exposure Our current RF guidelines ... pants pocket or shirt or tucked into a significant factor, a “safety” include[e] bra when the phone is ON and connect- whereby exposure limits are set at a network, a you may ed to wireless ex- level on the order of 50 times below the guidelines ceed the federal exposure for level at which biological adverse effects to RF radiation. Refer to the instruc- have been laboratory observed in ani- your phone tions in or manual use mals as a heating result of tissue result- your information about how to use ing exposure. from RF “safety” This phone safely. factor can variety well accommodate a 9.96.030(A) (2015). Mun. Code physical variables such as different char- majority parses these sentences in- acteristics and individual sensitivities— dividually and concludes that each is “lit- potential exposures and even the view, erally In my approach true.” this occur in excess of our limits without face, misses the forest for the trees. On its posing a health hazard to humans. begins and ends refer- In re Radiofrequen Reassessment safety, plainly conveying ences to cy Policies, Exposure Limits and 28 FCC intervening language something describes (Mar. 2013) 29, Red. (emphasis Indeed, unsafe. the disclosure directs con- added). There is thus no evidence in the sumers to their user manuals for instruc- record that the message conveyed by the your tions on phone safely.” “how use ordinance is true.2 agree majority’s preemption 1. I with the anal- nevertheless I were to consider the extent of 1., does, ysis only applicability, majority so dissent Zauderer’s from sections IV.A. as the IV.B., IV.C., I would be majority opin- inclined to conclude that Zauderer and IV.D. of the applies only government compels when the ion. truthful disclosure to counter a false or mis- 2. Because even under Zauderer v. leading advertisement. Given that the disclo- Office of Court Disciplinary Supreme Counsel prevented sure in Zauderer itself an advertise- Ohio, 471 U.S. being misleading, ment from I have serious (1985), any L.Ed.2d 652 forced disclosure Supreme doubt that the Court intended the truthful, statement must be see id. at apply Zauderer test to in broader circum- ("[W]e any S.Ct. I do not think that discussion stances. See id. hold that an advertis- appropriate rights of Zauderer is adequately protected long in this case. If er's are as as false alarms warnings represent apparent II ” Id. at they appear ‘crying to be wolf.’ as clearly does not The First Amendment 918; Ingrid also David Stewart & see W. to force businesses government

permit Martin, and Unintended Con- M. Intended misleading false or statements to make Warning Messages: A Review sequences In products. their Video about of Software Research, 13 Synthesis Empirical Dealers, challenge to a we considered of (1994). vid- requiring Marketing that “violent” If Pol’y California law Pub. & J. a sticker that be labeled with games eo Berkeley consumers to listen to its wants the sale or rental preventing said “18” stay quiet until it is warnings, it should F.3d games to minors. 556 of violent video of a present to evidence wolf. prepared striking down the law’s at 953-54. After prohibition, we concluded sale and rental continuing require to the label “18” convey ... a false state- arguably

“would buy or rent that minors could

ment” uncon- game, and was therefore

the video princi- The same Id. at 965-67.

stitutional. the First Amendment

ple applies here: retail- compelling from prohibits America, UNITED STATES misleading message. to communicate a ers Plaintiff-Appellee, likely hold that I would thus CTIA v. Amend- on the merits of its First succeed challenge. ment Raymond FRYBERG, Jr., Lee Defendant-Appellant. false, mislead- There are downsides warnings. product ing, or unsubstantiated No. 16-30013 re- and other social science Psychological Appeals, cause suggests that overuse United States Court search warnings pay less attention people Ninth Circuit. warnings generally: “[A]s number March Argued and Submitted warnings prevalence and the grows 2017, Seattle, Washington increases, will people low level risks about disregard them.” J. increasingly ignore or April Filed al., Potential Problems As- Paul Frantz et Overusing Warnings, Pro-

sociated with Ergo- &

ceedings of the Human Factors Soc’y Meeting Ann.

nomics 43rd

(1999). “[wjarnings very Relatedly, about extremely risks that are

minor risks or nega- raised concerns about

remote have believability and credi-

tive effects on the essence, In such

bility warnings.... advertising. misleading See 556 reasonably relat- otherwise requirements are ("[T]he labeling requirement preventing decep- at 967 fails F.3d ed to the State’s interest test, consumers.”). relationship contrary which majority’s Zauderer's rational tion of requirements are rea- if the 'disclosure also seems to me to be in tension asks conclusion Dealers, pre- sonably to the State’s interest in related with our decision in Video Software ” (quoting only venting deception customers.’ applying in the which treated Zauderer as Zauderer, 2265)). combatting 471 U.S. context of disclosures aimed at

Case Details

Case Name: Ctia - the Wireless Ass'n v. City of Berkeley

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Apr 21, 2017

Citation: 854 F.3d 1105

Docket Number: 16-15141

Court Abbreviation: 9th Cir.