Ctia - the Wireless Ass'n v. City of Berkeley , 928 F.3d 832 ( 2019 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CTIA - THE WIRELESS No. 16-15141
ASSOCIATION,
Plaintiff-Appellant, D.C. No.
3:15-cv-02529-
v. EMC
CITY OF BERKELEY, California;
CHRISTINE DANIEL, City Manager of OPINION
Berkeley, California, in her official
capacity,
Defendants-Appellees.
On Remand From the United States Supreme Court
Filed July 2, 2019
Before: William A. Fletcher, Morgan Christen,
and Michelle T. Friedland, Circuit Judges.
Opinion by Judge W. Fletcher;
Dissent by Judge Friedland
2 CTIA V. CITY OF BERKELEY
SUMMARY*
First Amendment
The panel affirmed the district court’s denial of CTIA’s
request for a preliminary injunction that sought to stay
enforcement of a City of Berkeley ordinance requiring 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 challenged the compelled disclosure provision of
the ordinance, arguing that it violated the First Amendment
and was preempted.
After the panel initially affirmed the district court’s denial
of CTIA’s request for a preliminary injunction, the U.S.
Supreme Court granted the CTIA’s petition for a writ of
certiorari, vacated the opinion, and remanded for further
consideration in light of its decision in National Institute of
Family and Life Advocates v. Becerra, 138 S. Ct. 2361 (2018)
(“NIFLA”).
In American Beverage Ass’n v. City and County of San
Francisco, 916 F.3d 749 (9th Cir. 2019) (en banc), the en
banc court held that Zauderer v. Office of Disciplinary
Counsel, 471 U.S. 626, 651 (1985) (holding that the
government may compel truthful disclosure in commercial
speech as long as the compelled disclosure is “reasonably
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
CTIA V. CITY OF BERKELEY 3
related” to a substantial government interest, and involves
factual and uncontroversial information that relates to the
service or product provided), provided the appropriate
framework to analyze a First Amendment claim involving
compelled commercial speech.
The panel considered CTIA’s likelihood of success on its
First Amendment claim. The panel held that it would
generally apply the intermediate scrutiny test mandated by
Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of
N.Y., 447 U.S. 557, 561 (1980), in commercial speech cases
where the government acts to restrict or prohibit speech, but
the Zauderer exception to the general rule of Central Hudson
could apply. The panel held that the governmental interest in
furthering public health and safety was sufficient under
Zauderer as long as it was substantial. The panel also held
that Zauderer required that the compelled disclosure further
some substantial – that is, more than trivial – governmental
interest. Applying the Zauderer test to the speech compelled
by the Berkeley ordinance, the panel held that the text of the
compelled disclosure was literally true, Berkeley’s required
disclosure was uncontroversial within the meaning of NIFLA,
and the compelled disclosure was not unduly burdensome.
The panel concluded that CTIA had little likelihood of
success on its First Amendment claim that the disclosure
compelled by the Berkeley ordinance was unconstitutional.
Turning to the issue of federal preemption of Berkeley’s
ordinance, the panel held that far from conflicting with
federal law and policy, the Berkeley ordinance complemented
and enforced it. The panel held that Berkeley’s compelled
disclosure did no more than alert consumers to the safety
disclosures that the Federal Communications Commission
required, and directed consumers to federally compelled
4 CTIA V. CITY OF BERKELEY
instructions in their user manuals providing specific
information about how to avoid excessive exposure. The
panel concluded that CTIA had little likelihood of success
based on conflict preemption.
The panel considered the other elements of its preliminary
injunction analysis. The panel held that there was no
showing of irreparable harm based on CTIA’s First
Amendment claim, or based on the preemption claim. The
panel concluded that the balance of the equities favored
Berkeley. The panel further held that the ordinance was in
the public interest and that an injunction would harm that
interest. The panel concluded that the district court did not
abuse its discretion in denying preliminary injunctive relief to
CTIA.
Dissenting in part, Judge Friedland wrote that CTIA is
likely to succeed on the merits of its First Amendment
challenge because Berkeley’s ordinance violates the First
Amendment by requiring businesses to make false and
misleading statements about their own products, and therefore
the ordinance should have been preliminarily enjoined.
COUNSEL
Helgi C. Walker and Theodore B. Olson, Gibson Dunn &
Crutcher LLP, Washington, D.C.; Alexander N. Harris,
Joshua D. Dick, and Joshua S. Lipshutz, Gibson Dunn &
Crutcher LLP, San Francisco, California; for Plaintiff-
Appellant.
Lester Lawrence Lessig, III, Cambridge, Massachusetts;
Amanda Shanor, New Haven, Connecticut; Jerome Mayer-
CTIA V. CITY OF BERKELEY 5
Cantu, Deputy City Attorney; Farimah Brown, City Attorney;
Berkeley City Attorney’s Office, Berkeley, California; for
Defendants-Appellees.
OPINION
W. FLETCHER, Circuit Judge:
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
affirmed the district court in a published opinion. See
CTIA–The Wireless Ass’n v. City of Berkeley, 854 F.3d 1105
(9th Cir. 2017) (“CTIA”). CTIA then filed a petition for writ
of certiorari. The Supreme Court granted the petition,
vacated our opinion, and remanded for further consideration
in light of its decision in National Institute of Family and Life
Advocates v. Becerra, — U.S. —, 138 S. Ct. 2361 (2018)
(“NIFLA”). CTIA–The Wireless Ass’n v. City of Berkeley, —
U.S. —, 138 S. Ct. 2708 (2018) (mem.).
Following remand, our three-judge panel requested
supplemental briefing from the parties regarding the effect of
6 CTIA V. CITY OF BERKELEY
NIFLA on CTIA’s First Amendment claims. We waited for
an en banc panel of our court to address a similar issue in a
separate case. In American Beverage Ass’n v. City and
County of San Francisco, 916 F.3d 749 (9th Cir. 2019) (en
banc) (“American Beverage”), the en banc panel
“reaffirm[ed] our reasoning and conclusion in CTIA that
[Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626
(1985)] provides the appropriate framework to analyze a First
Amendment claim involving compelled commercial speech.”
Id. at 756. In light of our en banc decision in American
Beverage, and having considered the parties’ supplemental
briefing on NIFLA, we again affirm the district court’s
decision. Our amended opinion addresses NIFLA’s
clarification of the Zauderer framework. See Section IV.A.1,
infra.
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.
CTIA V. CITY OF BERKELEY 7
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
8 CTIA V. CITY OF BERKELEY
disclosures and warnings are often buried in
fine print, are not written in easily understood
language, 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
CTIA V. CITY OF BERKELEY 9
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 8½ 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.
10 CTIA V. CITY OF BERKELEY
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, 725 F.3d 940, 944 (9th Cir. 2013). “An abuse of
discretion occurs when the district court based its ruling on an
erroneous view of the law or on a clearly erroneous
assessment of the evidence.” Friends of the Wild Swan v.
Weber, 767 F.3d 936, 942 (9th Cir. 2014) (citation and
internal quotation marks omitted). We will not reverse the
district court where it “got the law right,” even if we “would
have arrived at a different result,” so long as the district court
did not clearly err in its factual determinations. Lands
Council v. McNair, 537 F.3d 981, 987 (9th Cir. 2008) (en
banc).
III. Regulatory Background
The Federal Communications Commission (“FCC”) has
regulatory jurisdiction over transmitting services in the
United States. In 1996, after extensive consultation with
other agencies, the FCC issued a rule designed to limit the
Specific Absorption Rate (“SAR”) of radio-frequency (“RF”)
radiation from FCC-regulated transmitters, including cell
phones:
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
CTIA V. CITY OF BERKELEY 11
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
12 CTIA V. CITY OF BERKELEY
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 Radio-
frequency 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
CTIA V. CITY OF BERKELEY 13
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 example 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:
. . . [E]xceeding 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
14 CTIA V. CITY OF BERKELEY
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—by reducing the amount of RF radiation from a
transmitting device, or by 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
CTIA V. CITY OF BERKELEY 15
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/MA618/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
about avoiding even potential risks, you can
16 CTIA V. CITY OF BERKELEY
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
(1g) and when worn on the body, as described
in this user guide, is 0.95 W/Kg (1g)
(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
CTIA V. CITY OF BERKELEY 17
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 (2008).
“[A] stronger showing of one element may offset a weaker
showing of another.” All. for the Wild Rockies v. Cottrell,
632 F.3d 1127, 1131 (9th Cir. 2011). For example, “a
preliminary injunction could issue where the likelihood of
success is such that ‘serious questions going to the merits
were raised and the balance of hardships tips sharply in
[plaintiff’s] favor.’” Id. at 1132 (quoting Clear Channel
Outdoor, Inc. v. City of L.A., 340 F.3d 810, 813 (9th Cir.
2003)).
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.
18 CTIA V. CITY OF BERKELEY
1. First Amendment
The disclosure underlying Berkeley’s ordinance is the
disclosure the FCC requires cell phone manufacturers to
provide to consumers. However, CTIA has not sued the FCC.
Rather, CTIA has sued Berkeley. Berkeley’s ordinance
requires cell phone retailers to disclose, in summary form, the
information to consumers that the FCC already requires cell
phone manufacturers to disclose. The Berkeley disclosure
directs consumers to user manuals for the specifics of the
information required by the FCC.
a. Central Hudson or Zauderer
The parties agree that Berkeley’s ordinance is a regulation
of commercial speech. Cent. Hudson Gas & Elec. Corp. v.
Pub. Serv. Comm’n of N.Y., 447 U.S. 557, 561 (1980); see
Hunt v. City of L.A., 638 F.3d 703, 715 (9th Cir. 2011).
However, they disagree about whether the ordinance’s
compliance with the First Amendment should be analyzed
under Central Hudson or under Zauderer v. Office of
Disciplinary Counsel of the Supreme Court of Ohio, 471 U.S.
626 (1985).
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. 477 U.S.
at 564. The restriction or prohibition must “directly advance
the governmental interest asserted,” and must not be “more
extensive than is necessary to serve that interest.” Id. at 566.
Under Zauderer as we interpret it today, the government may
compel truthful disclosure in commercial speech as long as
the compelled disclosure is “reasonably related” to a
CTIA V. CITY OF BERKELEY 19
substantial governmental interest, Zauderer, 471 U.S. at 651,
and involves “purely factual and uncontroversial information”
that relates to the service or product provided. NIFLA, 138
S. Ct. at 2372 (quoting Zauderer, 471 U.S. at 651).
We apply the intermediate scrutiny test mandated by
Central Hudson in commercial speech cases where the
government acts to restrict or prohibit speech, 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, 477 U.S. at 563.
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 Dalkon 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,
471 U.S. at 631. Zauderer was disciplined under Ohio state
bar disciplinary rules on the ground that the advertisement
was “deceptive” within the meaning of the rules, id. at 633,
because it failed to disclose “the client’s potential liability for
costs even if her suit were unsuccessful.” Id. at 635. The
Court noted that the bar disciplinary rules required Zauderer
to “include in his advertising purely factual and
uncontroversial information about the terms under which his
20 CTIA V. CITY OF BERKELEY
services will be available.” Id. at 651. The Court wrote,
“Ohio has not attempted to prevent attorneys from conveying
information to the public; it has only required them to provide
somewhat more information than they might otherwise be
inclined to present.” Id. at 650. The Supreme Court declined
to apply the Central Hudson test:
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 burdensome 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.
Id. at 651 (internal citation omitted). See also Milavetz,
Gallop & Milavetz, P.A. v. United States, 559 U.S. 229, 253
(2010) (following Zauderer and using its “preventing
deception” language).
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
CTIA V. CITY OF BERKELEY 21
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 Zauderer compelled-disclosure test applies. Cf.
Video Software Dealers Ass’n v. Schwarzenegger, 556 F.3d
950, 967 (9th Cir. 2009) (invalidating compelled disclosure
on video game packaging, noting that the disclosure would
“arguably now convey a false statement that certain conduct
is illegal when it is not, and the State has no legitimate reason
to force retailers to affix false information on their
products”). Several of our sister circuits, however, have
answered this question. They have unanimously concluded
that the Zauderer exception for compelled speech applies
even in circumstances where the disclosure does not protect
against deceptive speech.
In American Meat Institute v. U.S. Department of
Agriculture, 760 F.3d 18 (D.C. Cir. 2014) (en banc), a
Department of Agriculture regulation required identification
of the country of origin on the packaging of meat and meat
products. Id. at 20. The regulation implemented a federal
statute requiring country-of-origin labeling. See 7 U.S.C.
§ 1638, 1638a. The D.C. Circuit held that Zauderer should
not be read to apply only to cases where government-
compelled speech prevents or corrects deceptive speech. It
noted that on the facts of both Zauderer and Milavetz (in
which the Court repeated Zauderer’s “preventing deception”
language) there had been deceptive speech: “Given the
subject of both cases, it was natural for the Court to express
the rule in such terms. The language could have been simply
descriptive of the circumstances to which the Court applied
its new rule[.]” Am. Meat, 760 F.3d at 22. The D.C. Circuit
concluded, “The language with which Zauderer justified its
22 CTIA V. CITY OF BERKELEY
approach . . . sweeps far more broadly than the interest in
remedying deception.” Id.
In National Electrical Manufacturers Association v.
Sorrell, 272 F.3d 104 (2d Cir. 2001), a Vermont statute
required manufacturers of mercury-containing products to
label their products and packaging to inform consumers that
the products contained mercury and instructing them that the
products should be disposed of or recycled as hazardous
waste. Id. at 107. The Second Circuit held that the
compelled disclosure was supported by a “substantial state
interest in protecting human health and the environment.” Id.
at 115 n. 6. Citing Zauderer, the court recognized that the
compelled disclosure did not “prevent ‘consumer confusion
or deception.’” Sorrell, 272. F.3d at 115. It nonetheless
upheld the disclosure as not “inconsistent with the policies
underlying First Amendment protection of commercial
speech.” Id. “[M]andated disclosure of accurate, factual,
commercial information does not offend the core First
Amendment values of promoting efficient exchange of
information or protecting individual liberty interests.” Id. at
114; see also N.Y. State Rest. Ass’n v. N.Y.C. Bd. of Health,
556 F.3d 114, 133 (2d Cir. 2009) (“Zauderer’s holding was
broad enough to encompass nonmisleading disclosure
requirements.”); Discount Tobacco City & Lottery, Inc. v.
United States, 674 F.3d 509, 556–58 (6th Cir. 2012)
(upholding federally required health warnings on cigarette
packaging and in cigarette advertisements, relying on the
Second Circuit’s opinion in Sorrell); Pharm. Care Mgmt.
Ass’n v. Rowe, 429 F.3d 294, 310 n.8 (1st Cir. 2005) (noting
that the court had found no cases limiting application of the
Zauderer compelled speech test to prevention or correction of
deceptive advertising); cf. Dwyer v. Cappell, 762 F.3d 275,
CTIA V. CITY OF BERKELEY 23
281–82 (3d Cir. 2014) (describing but not relying on
Zauderer’s preventing-deception criterion).
Our sister circuits have thus held under Zauderer that the
prevention of consumer deception is not the only
governmental interest that may permissibly be furthered by
compelled commercial speech. The Supreme Court also
signaled its agreement with this reading of Zauderer. In
NIFLA, the Court cited Zauderer and other cases to explain
that its “precedents have applied more deferential review to
some laws that require professionals to disclose factual,
noncontroversial information in their ‘commercial speech,’”
138 S. Ct. at 2372, and that it was “not question[ing] the
legality of health and safety warnings, long considered
permissible, or purely factual and uncontroversial disclosures
about commercial products.” Id. at 2376.
We therefore hold that the governmental interest in
furthering public health and safety is sufficient under
Zauderer so long as it is substantial. In so holding, we do not
foreclose that other substantial interests in other cases may
suffice as well. 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, 760 F.3d
at 23 (“Because the interest motivating the 2013 [country-of-
origin] rule is a substantial one, we need not decide whether
a lesser interest could suffice under Zauderer.”). We answer
the question avoided in American Meat, holding that
Zauderer requires that the compelled disclosure further some
substantial—that is, more than trivial—governmental interest.
Central Hudson explicitly requires that a substantial interest
be furthered by a challenged regulation prohibiting or
restricting commercial speech, and we see nothing in
24 CTIA V. CITY OF BERKELEY
Zauderer that would allow a lesser interest to justify
compelled commercial speech. To use the words of the
Second Circuit in Sorrell, the interest at stake must be more
than the satisfaction of mere “consumer curiosity.” Sorrell,
272 F.3d at 115 n.6; see also Am. Meat, 760 F.3d at 23
(“Country-of-origin information has an historical pedigree
that lifts it well beyond ‘idle curiosity.’”). To use the words
of the Supreme Court, “Disclosures must remedy a harm that
is ‘potentially real not purely hypothetical[.]’” NIFLA, 138 S.
Ct. at 2367 (quoting Ibanez v. Fla. Dep’t of Bus. & Prof’l.
Regulation, 512 U.S. 136, 146 (1994)).
ii. Purely Factual and Uncontroversial Information
The Court in Zauderer noted that the compelled
disclosure in that case was of “purely factual and
uncontroversial information.” Zauderer, 471 U.S. at 651.
But the Court did not explicitly require in its constitutional
test that the disclosed information be “purely factual and
uncontroversial.” In NIFLA, however, the Court held that the
Zauderer standard did not apply to one of two government-
mandated notices at issue in that case because it was “not
limited to ‘purely factual and uncontroversial information
about the terms under which . . . services will be available.’”
138 S. Ct. at 2372 (quoting Zauderer, 471 U.S. at 651)
(omission in original). NIFLA thus stands for the proposition
that the Zauderer standard applies only if the compelled
disclosure involves “purely factual and uncontroversial”
information.
NIFLA elaborated on Zauderer’s “purely factual and
uncontroversial” criteria in two respects.
CTIA V. CITY OF BERKELEY 25
First, the Court held in NIFLA that the required
information about state-provided abortion services was
controversial. The question in NIFLA was whether California
could require clinics that did not provide abortion services to
post a notice giving factual information about state-provided
services, including abortion, offered elsewhere. The Court
wrote, “[The State] requires these clinics to disclose
information about state-sponsored services—including
abortion, anything but an ‘uncontroversial’ topic.” Id. at
2372 (emphasis in original). We do not read the Court as
saying broadly that any purely factual statement that can be
tied in some way to a controversial issue is, for that reason
alone, controversial. The dispute in NIFLA was whether the
state could require a clinic whose primary purpose was to
oppose abortion to provide information about “state-
sponsored services,” including abortion. While factual, the
compelled statement took sides in a heated political
controversy, forcing the clinic to convey a message
fundamentally at odds with its mission. Under these
circumstances, the compelled notice was deemed
controversial within the meaning of Zauderer and NIFLA.
Second, the Court in NIFLA required that the compelled
speech relate to the product or service that is provided by an
entity subject to the requirement. Thus, in addition to holding
that clinics could not be required to post the notice because it
was controversial, the Court struck down the requirement that
clinics post information about services they did not provide.
Id.
c. Application of Zauderer Test
Under Zauderer, compelled disclosure of commercial
speech complies with the First Amendment if the information
26 CTIA V. CITY OF BERKELEY
in the disclosure is reasonably related to a substantial
governmental interest and is purely factual and
uncontroversial. 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, 478 U.S. 328, 341 (1986) (“[H]ealth, safety, and
welfare constitute[] a ‘substantial’ governmental interest”).
The federal government and Berkeley have both sought to
further that interest. By adopting SAR limits on exposure to
RF radiation, the FCC has furthered the interest of protecting
the health and safety of cell phone users in the United States.
It has done so by adopting a highly protective policy, setting
low SAR limits on RF radiation and compelling cell phone
manufacturers to disclose information to cell phone users that
will allow them to avoid exceeding those limits. By passing
its ordinance, the City of Berkeley furthers that same interest.
After finding that cell phone users are largely unaware of the
FCC policy and of the information in their user manuals, the
Berkeley City Council decided to compel retailers in
Berkeley to provide, in summary form, the same information
that the FCC already requires cell phone manufacturers to
provide to those same consumers, and to direct those
consumers to consult their user manuals for more detailed
information. See Jensen Decl., Ex. A (survey) (reflecting that
a majority of persons surveyed were not “aware that the
government’s radiation tests to assure the safety of cell
phones assume that a cell phone would not be carried against
CTIA V. CITY OF BERKELEY 27
your body, but would instead be held at least 1 to
15 millimeters from your body”).
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 SAR limits. After extensive
consultation with federal agencies with expertise about the
health effects of radio-frequency radiation, the FCC decided,
despite the lack of proof of dangerousness, that the best
policy was to adopt SAR limits with a large margin of safety.
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
further details. We are not in a position to disagree with the
conclusions of FCC and Berkeley that this compelled
28 CTIA V. CITY OF BERKELEY
disclosure is “reasonably related” to protection of the health
and safety of consumers.
ii. Purely Factual and Uncontroversial
CTIA argues that Berkeley’s compelled disclosure is not
“purely factual” within the meaning of Zauderer. 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).
CTIA V. CITY OF BERKELEY 29
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 premised on maintaining a certain separation
between a cell phone and the user’s body. Maintaining that
separation protects consumers from exceeding the SAR
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
argument solely on the text of the ordinance.
30 CTIA V. CITY OF BERKELEY
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
CTIA V. CITY OF BERKELEY 31
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 6 (“radio-frequency (RF) radiation”). We do
not fault Berkeley for using the term “RF radiation” to refer
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
32 CTIA V. CITY OF BERKELEY
Berkeley were, or are likely to be, depressed as a result of the
compelled disclosure.
In its supplemental briefing, CTIA presses its argument
that Berkeley’s compelled disclosure is controversial.
Specifically, CTIA argues that the disclosure is controversial
because, in its view, it is misleading rather than factual.
Because we have determined that the disclosure is factual and
not misleading, we reject CTIA’s argument that the
disclosure is controversial.
Notably, CTIA does not argue that Berkeley’s compelled
disclosure is controversial as a result of disagreement about
whether radio-frequency radiation can be dangerous to cell
phone users. We agree with CTIA’s tacit admission that the
required disclosure is not controversial on that account. We
recognize that there is a controversy concerning whether
radio-frequency radiation from cell phones can be dangerous
if the phones are kept too close to a user’s body over a
sustained period. CTIA stoutly maintains that cell phones
present no danger whatsoever; the FCC, on the other hand,
has determined that cell phone users should be cautioned to
store their cell phones at a certain distance from their bodies
in order to avert any possible danger. Despite this
disagreement, Berkeley’s required disclosure is
uncontroversial within the meaning of NIFLA. It does not
force cell phone retailers to take sides in a heated political
controversy. The FCC’s required disclosure is no more and
no less than a safety warning, and Berkeley’s required
disclosure is a short-hand description of the warning the FCC
already requires cell phone manufacturers to include in their
user manuals. See NIFLA, 138 S. Ct. at 2376 (“[W]e do not
question the legality of health and safety warnings long
considered permissible[.]”).
CTIA V. CITY OF BERKELEY 33
CTIA also argues that Zauderer does not apply because
the disclosure “has nothing to do with the terms upon which
cell phones are offered[.]” But NIFLA plainly contemplates
applying Zauderer to “purely factual and uncontroversial
disclosures about commercial products.” NIFLA, 138 S. Ct.
at 2376 (emphasis added). Berkeley’s ordinance falls
squarely within this category. It requires cell phone retailers
to disclose information to prospective cell phone purchasers
about what the FCC has concluded is appropriate use of the
product they are about to buy.
d. Unduly Burdensome
Finally, CTIA argues that Berkeley’s compelled
disclosure is unconstitutional under Zauderer because it is
“unduly burdensome.” NIFLA, 138 S. Ct. at 2377 (quoting
Zauderer, 471 U.S. at 651). In American Beverage, we
considered en banc a similar challenge to a San Francisco
ordinance requiring health warnings on some advertisements
for certain sugar-sweetened beverages. The San Francisco
ordinance included “a requirement that the warning occupy
at least 20% of the advertisement and be set off with a
rectangular border.” American Beverage, 916 F.3d at 754
(quoting City & Cty. of S.F., Cal., Health Code art. 42, div.
I, § 4203(b)). We concluded that San Francisco had not met
its burden of showing that the warning “does not ‘drown out’
Plaintiffs’ messages and ‘effectively rule[] out the possibility
of having [an advertisement] in the first place.” Id. at 757
(quoting NIFLA, 138 S. Ct. at 2378). We thus held that the
20% requirement was “unduly burdensome when balanced
against its likely burden on protected speech.” Berkeley’s
ordinance, in contrast, does not unduly burden speech. As
noted above, the ordinance may be satisfied by a single 8.5 x
11" posted notice or 5 x 8" handout to which the retailer may
34 CTIA V. CITY OF BERKELEY
add additional information so long as that information is
distinct from the compelled disclosure. This minimal
requirement does not interfere with advertising or threaten to
drown out messaging by the cell phone retailers subject to the
requirement.
e. Likelihood of Success
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., 593 F.3d 936, 941 (9th
Cir. 2010) (internal quotation marks omitted). CTIA
contends that Berkeley’s compelled disclosure is invalid
because of conflict preemption.
“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., 776 F.3d 1035,
1039 (9th Cir. 2015) (citations and internal quotation marks
omitted). “When Congress charges an agency with balancing
competing objectives, it intends the agency to use its reasoned
judgment to weigh the relevant considerations and determine
CTIA V. CITY OF BERKELEY 35
how best to prioritize those objectives. Allowing a state law
to impose a different standard [impermissibly] permits a re-
balancing of those objectives.” Farina v. Nokia Inc.,
625 F.3d 97, 123 (3d Cir. 2010). Conflict preemption arises
either when “compliance with both federal and state
regulations is a physical impossibility . . . or when state law
stands as an obstacle to the accomplishment and execution of
the full purposes and objectives of Congress.” McClellan,
776 F.3d at 1039 (citations and internal quotation marks
omitted). We are concerned here with “obstacle” preemption.
CTIA contends that Berkeley’s compelled disclosure creates
an impermissible obstacle by requiring more disclosure than
is required by the FCC. See Crosby v. Nat’l Foreign Trade
Council, 530 U.S. 363, 373 (2000) (finding preemption where
a challenged state law “stands as an obstacle to the
accomplishment and execution of the full purposes and
objectives of Congress.”) (internal quotation marks omitted).
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., 536 U.S. 424, 438 (quoting
Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996)).
“Congressional intent, therefore, is the ultimate touchstone of
preemption analysis.” Engine Mfrs. Ass’n v. S. Coast Air
Quality Mgmt. Dist., 498 F.3d 1031, 1040 (9th Cir. 2007)
(citing Tocher v. City of Santa Ana, 219 F.3d 1040, 1045 (9th
Cir. 2000)).
The FCC’s organic statute is the Telecommunications Act
of 1996 (“the Act”), 110 Stat. 56. Legislative hearings, as
36 CTIA V. CITY OF BERKELEY
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., 625 F.3d 97, 106 (3d Cir. 2010) (quoting 110 Stat. 56,
152). Specifically, “the FCC was tasked not only with
protecting the health and safety of the public, but also with
ensuring the rapid development of an efficient and uniform
network[.]” Id. at 125. This led to the creation of the
regulatory measures described supra.
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., Plaintiff’s 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, 321 F.3d 878, 882 (9th Cir. 2003) (“This issue
is raised for the first time on appeal, and we therefore treat
the issue as waived.”); United States v. Bohn, 956 F.2d 208,
CTIA V. CITY OF BERKELEY 37
209 (9th Cir. 1992) (“we ordinarily decline to consider
arguments raised for the first time in a reply brief”). But we
note that if we were to consider CTIA’s argument on the
merits, we would reject it. Beginning in October 2015, the
FCC required cell phone manufacturers to inform consumers
of minimum separation distances in user manuals. We quoted
the relevant passage, supra at 14–15. For the convenience of
the reader, we repeat much of the passage here:
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
38 CTIA V. CITY OF BERKELEY
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 alert
consumers to the safety disclosures that the FCC requires, and
direct consumers to federally compelled instructions in their
user manuals providing specific information about how to
avoid excessive exposure. Far from conflicting with federal
law and policy, the Berkeley ordinance complements and
reinforces it.
B. Irreparable Harm
Irreparable harm is relatively easy to establish in a First
Amendment case. “[A] party seeking preliminary injunctive
relief in a First Amendment context can establish irreparable
injury . . . by demonstrating the existence of a colorable First
Amendment claim.” Sammartano v. First Judicial District
Court, 303 F.3d 959, 973 (9th Cir. 2002) (citation omitted),
abrogated on other grounds by Winter v. Nat. Res. Def.
Council., 555 U.S. 7, 22 (2008). We nonetheless conclude
that it has not been established here.
CTIA V. CITY OF BERKELEY 39
“[T]he loss of First Amendment freedoms, for even
minimal periods of time, unquestionably constitutes
irreparable injury.” Id. (citing Elrod v. Burns, 427 U.S. 347,
373 (1976)). But the mere assertion of First Amendment
rights does not automatically require a finding of irreparable
injury. It is the “purposeful unconstitutional suppression of
speech [that] constitutes irreparable harm for preliminary
injunction purposes.” Goldie’s Bookstore v. Superior Ct.,
739 F.2d 466, 472 (9th Cir. 1984). We have already
concluded under the Zauderer test for compelled disclosure
that, on the record before us, Berkeley’s ordinance complies
with the First Amendment. Sammartano, 303 F.3d at 973–74
(“[T]he test for granting a preliminary injunction is ‘a
continuum in which the required showing of harm varies
inversely with the required showing of meritoriousness,’
when the harm claimed is a serious infringement on core
expressive freedoms, a plaintiff is entitled to an injunction
even on a lesser showing of meritoriousness.”). Further, there
is nothing in the record showing harm to CTIA or its
members through actual or threatened reduction in sales of
cell phones caused by the disclosure compelled by the
ordinance.
We conclude similarly that there has been no showing of
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, 586 F.3d 1109, 1138 (9th
Cir. 2009).
40 CTIA V. CITY OF BERKELEY
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, 475 U.S. 1, 15–16 (1986), to argue
that, while disclosures may not violate the First Amendment,
the ordinance imposes an “undue burden” on CTIA’s
members because it creates significant “pressure to respond,”
and that this pressure is “antithetical to the free discussion
that the First Amendment seeks to foster.” There is no
showing of any such pressure. The ordinance requires
CTIA’s members to inform their customers that the FCC has
promulgated regulations concerning RF emissions and to
advise customers to refer to their user manuals for more
information. To the extent a cell phone retailer is dissatisfied
with the disclosure as written, it can append additional
disclosures. Berkeley Ordinance, § 9.96.030(C) ( May 26,
2015). CTIA has put nothing in the record showing that any
Berkeley cell phone retailer has felt pressured, or has sought
to take advantage of the provision of the ordinance allowing
it to make any additional disclosure it desires. See also
Milavetz, 559 U.S. at 250 (“not preventing . . . [the]
convey[ance] of any additional information” is one of the
essential features of a Zauderer disclosure).
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.
CTIA V. CITY OF BERKELEY 41
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. L.A. Cty., 339 F.3d 920, 931–32
(9th Cir. 2003) (internal quotation marks and citation
omitted) (citing Weinberger v. Romero-Barcelo, 456 U.S.
305, 312 (1982)). We agree with the district court that an
injunction would injure the public interest in having a free
flow of accurate information.
“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, 272 F.3d at 114. The district court found that while
“‘accurate and balanced disclosures regarding RF energy are
already available’ . . . there is evidence that the public does
not know about those disclosures.” Because “disclosure
furthers, rather than hinders . . . the efficiency of the
‘marketplace of ideas,’” we hold that the ordinance is in the
public interest and that an injunction would harm that
interest. See Nat’l Elec. Mfrs. Ass’n, 272 F.3d at 114.
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
42 CTIA V. CITY OF BERKELEY
preliminary injunctive relief to CTIA. Accordingly, the
district court’s order denying such relief is
AFFIRMED.
FRIEDLAND, Circuit Judge, 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, 556 F.3d 950,
967 (9th Cir. 2009), aff’d sub nom. Brown v. Entm’t Merchs.
Ass’n, 564 U.S. 786 (2011). Because—at least on the current
record—that is what Berkeley’s ordinance would do, I
believe the ordinance violates the First Amendment and
therefore should have been preliminarily enjoined.1 See Klein
v. City of San Clemente, 584 F.3d 1196, 1207–08 (9th Cir.
2009) (“Both this court and the Supreme Court have
repeatedly held that ‘[t]he loss of First Amendment freedoms,
for even minimal periods of time, unquestionably constitutes
1
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.
CTIA V. CITY OF BERKELEY 43
irreparable injury.’” (quoting Elrod v. Burns, 427 U.S. 347,
373 (1976))).
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.
44 CTIA V. CITY OF BERKELEY
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 Rcd. 3498, 3582 (Mar. 29, 2013)
(emphasis added). There is thus no evidence in the record
that the message conveyed by the ordinance is true.2
2
Because even under Zauderer v. Office of Disciplinary Counsel,
471 U.S. 626 (1985), any forced disclosure statement must be truthful, see
id. at 651; Am. Beverage Ass'n v. City & County of San Francisco, 916
F.3d 749, 756 (9th Cir. 2019) (en banc), I do not think that any discussion
of the scope of Zauderer’s applicability is necessary in this case. Were I
writing on a blank slate about that issue, however, I would conclude that
Zauderer applies only when the government compels a truthful disclosure
to counter a false or misleading advertisement. Given that the disclosure
CTIA V. CITY OF BERKELEY 45
II
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. 556 F.3d at 953–54. After striking down the law’s
sale and rental prohibition, we concluded that continuing to
require the label “18” “would arguably . . . convey a false
statement” that minors could not buy or rent the video game,
and was therefore unconstitutional. Id. at 965–67. The same
principle applies here: the First Amendment prohibits
Berkeley from compelling retailers to communicate a
misleading message. I would thus hold that CTIA is likely to
succeed on the merits of its First Amendment challenge.
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
in Zauderer itself prevented an advertisement from being misleading, I
have serious doubt that the Supreme Court intended the Zauderer test to
apply in broader circumstances. See Zauderer, 471 U.S. at 651 (“[W]e
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.”). Although our en banc decision in
American Beverage held that Zauderer is not so limited, see 916 F.3d at
756, I agree with Judge Nguyen’s statement in her separate concurrence
there that “[t]he Supreme Court recently had the opportunity to expand
Zauderer’s application beyond deceptive speech but declined to do so.”
Id. at 768 (Nguyen, J., concurring in the judgment).
46 CTIA V. CITY OF BERKELEY
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, “[w]arnings 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.