ANA Urges Ninth Circuit to Review Berkeley Cell Phone Ordinance

The Association of National Advertisers (ANA) today emphasized its strong opposition to the City of Berkeley’s mandate to force wireless producers and sellers to provide a point of sale public notice regarding radio frequency safety. Berkeley’s required notice contradicts federal findings that cell phones are safe. ANA filed its Amicus Curiae, or “friend of the court” brief, in support of the CTIA-The Wireless Association, arguing that the entire Ninth Circuit should rehear and vacate the decision of a three-judge panel which upheld the denial of a preliminary injunction blocking the Berkeley ordinance.

“The City of Berkeley’s ordinance is a gross overreach and puts a fundamental principle of the constitution at risk,” said Dan Jaffe, Group Executive Vice President of Government Relations for ANA. “Any ruling where a court effectively allows local officials to compel speech whenever they feel like sending a government message remotely related to products or services sets an inherently dangerous precedent. The potential implications of this decision are staggering.”  

The ANA brief urges the entire Ninth Circuit Court of Appeals to review and vacate an April 21 decision by a three-judge panel of the Circuit which upheld the Berkeley ordinance. The brief notes that the decision sets a very dangerous precedent for all marketers: “The panel’s ruling can affect any lawful product or service about which the government believes it knows best. There would be no reason Berkeley could not impose similar notice requirements for a multitude of products, and every one of the some 30,000 city, town and county governments in the United States would be free to do so as well. There is virtually no logical stopping point for disclosure requirements on any product any government body might decide should bear warnings to consumers, based on whatever ‘non-trivial’ health or safety-related hobbyhorse a regulator might dream up.”  

Jaffe noted, “This decision brings the advertising community to a critical juncture regarding the constitutionality of compelled disclosures. The Supreme Court has established a clear trajectory toward enabling greater protection for commercial speech, not less. The City of Berkeley must not be allowed to force commercial speakers to carry the government’s message, especially one contrary to scientific evidence and the FCC’s express findings.”

ANA’s brief stated: “Allowing public bodies to conscript and burden marketers’ communications is an invitation for every level of government to force advertisers to carry government messages with which they disagree. Such requirements cannot be justified where disclosures are not necessary to combat deceptive or potentially misleading commercial speech.”

Jaffe concluded: “ANA is also involved in another lawsuit challenging a San Francisco ordinance which requires health warnings in ads for certain sugar-sweetened beverages. A preliminary injunction was denied in that case as well. We are very hopeful that the full Ninth Circuit will step in to stop this effort to require that ads become placards for government messages.”