By Susan Gluss
If you’re one of the roughly 95 percent of Americans who own a cell phone, an Environmental Law Clinic case has direct implications for you.
The Berkeley Law clinic just won a final legal ruling forcing a state agency to release guidelines on the risks of cell phone radiation and ways to mitigate exposure. The case—the clinic’s first—concerns the health effects of radiofrequency electromagnetic fields (EMFs) emitted by wireless phones.
After analyzing the scientific data, the California Department of Public Health wrote a short, two-page brochure for consumers, Cell Phones and Health. But the agency suppressed its own findings, according to Dr. Joel Moskowitz, director of UC Berkeley’s Center for Family and Community Health.
Moskowitz tried to obtain a copy of the guidelines, to no avail. After several failed Public Records Act requests, he asked the clinic and pro bono lawyers at the First Amendment Project to file suit. Based on their work, he grew confident that the court would give their petition “serious consideration.”
Clinic Director Claudia Polsky ’96, lead counsel on the case, said the public had a right to know about a “hugely relevant” issue.
“We’re talking about lifetimes of exposure,” Polsky said. “If there’s any data that’s been analyzed, particularly if there are any precautionary recommendations emerging from that data, it’s definitely in the public interest to get that released.”
The agency brochure summarized scientific studies suggesting that “people with certain kinds of brain cancer were more likely to have used cell phones for 10 years or more. … Most of the cancers were on the same side of the head that people usually held their phones.”
Although the chance of developing brain cancer is very small, according to the brochure, studies suggest that regular cell phone use does increase the risk. Studies have also linked EMF exposure to fertility problems.
The information is not particularly new; concerns about long-term cell phone use have been publicly reported for several years—and evidence of harm is mounting. Just last year, an animal study by the National Toxicology Program found strong links to small, but elevated, risks of brain and heart cancer from long-term heavy cell phone use.
In Sacramento Superior Court, the health department argued, in part, that the science was incomplete and the brochure was in draft form—which meant that it could be exempt from a public record request. To the contrary, Polsky said, “all indications showed” that the document was in its final form.
The document clearly reflected “people with scientific credentials reviewing the existing literature, compiling it, translating it for a lay audience and then saying, ‘Here are some actions based on what we’ve just told you,’” Polsky said. “The argument that the scientific endeavor would be compromised by forcing a release of this document was pretty laughable to us,” she said.
Then why suppress it?
Polsky, a former deputy attorney general, suspects “fear of the wrath of the cell phone industry, which has been extremely litigious.” The industry successfully sued San Francisco to block an ordinance disclosing risks of cell phone radiation and is now litigating in the 9th Circuit against a similar Berkeley ordinance.
“The industry is desperately afraid of any indication that it needs to be regulated,” said Polsky, and likened the situation to the auto industry’s past resistance to regulation. “The auto industry fought seat belts, then they fought airbags. These are things that people have not only accepted as safety measures, but have also welcomed. Now, car companies compete over who has the better airbags, and you see public outrage in litigation when airbags don’t perform as advertised.”
A number of clinic law students worked on the case, including Alexander Tom ’17, who co-wrote drafts of the opening brief. He also researched the science behind cell phone radiation and reviewed guidelines released by other states.
“It’s somewhat surprising that the department felt such a strong need to not release the document, to the point of litigation,” Tom said. “One of its rationales—that this information would confuse the public and cause hysteria—is not supported by our experience with government agencies issuing precautionary warnings about cell phones or other products.”
Children and teens are most at risk to cell phone EMF exposure, a keen concern of Polsky’s.
“To reduce aggregate exposure, probably the most important thing is having your phone far away from you when you’re sleeping,” she said. “This is a particular issue with kids, because so many of them sleep with their cell phone right near their head, or in their bed, or under their pillow so they don’t miss a text or chat during the night.”
The agency brochure recommends using the speakerphone or headset and relying more on texts than wireless calls. It also cautions against carrying the phone in a pocket unless it’s turned off.
“Having your cell phone in your front pocket or having it in your bra puts your phone almost against your skin,” which can affect nearby body tissues, Polsky said. “Don’t buy the bra that contains a cell phone pocket. Don’t put your phone in your front pocket. Put it in a holster. Put it on a table near you. Put it in your bag instead of in your clothing. These are pretty small behavioral adjustments that, over a lifetime of use, could make a difference.”
Polsky acknowledges that the science of cell phone radiation risk is still incomplete.
“We see this as a public records matter,” she said. “The cell phone science is not on trial here. What’s on trial is the public’s right to information, so that we can each decide on our own level of risk tolerance.”
After the court’s tentative ruling last month, the agency released its cell phone safety brochure with a large banner, Draft and Not for Public Release, across the front. The court’s final ruling orders the agency to release it in its original form.