State-Law Claims That 'Attack' Cellphone Safety Are Federally Preempted, Court Finds

The cellphone industry won more than a slim partial victory late Friday when U.S. District Judge James Cain for Western Louisiana in Lake Charles dismissed, on federal preemption grounds, all claims that the industry covered up information showing that many cellphones don’t comply with the FCC’s specific absorption rate (SAR) limitations for how much RF radiation is absorbed into the human body.

The surviving wife and two sons of pastor Frank Walker had alleged that the defective phones he used, plus the industry’s coverup of those phones, led to his death from brain cancer in 2020 (see 2210180078). The defendants in the case include AT&T, Cricket, HMD, Microsoft and Motorola, plus CTIA and the Telecommunications Industry Association.

Not preempted by federal law, said Cain’s memorandum ruling (docket 2:21-cv-00923), were the Walkers’ claims under the Louisiana Products Liability Act that the phones Frank Walker used were somehow defective in that they deviated from the federal SAR standard. In light of “the historical role of the states in health and safety,” and the state product liability statutes in existence at the time the SAR standard was adopted, the court can’t find the manufacturing defect claims preempted "to the extent an individual phone might deviate from the federal standard due to some error by the manufacturer,” said the ruling.

But to prevail on those claims, the Walkers will first need to prove that one or more of the phones Frank Walker used exceeded the SAR standard under FCC testing protocols due to some defect caused by a defendant handset manufacturer, said the ruling. The judge in January denied the Walkers leave to do discovery to find evidence that would support their allegations (see 2301230064).

It’s "unclear" from the complaint how the Walkers "came to their belief" that the phones at issue exceeded the SAR standard “or if they are even in possession of these phones,” said the ruling. But the motion before the court is based on federal preemption, not the “adequacy” of the Walkers’ allegations, it said.

The Walkers’ remaining claims about the industry’s failure to warn the public about the hazards of cellphone use and to misrepresent the RF safety issue are federally preempted, said the ruling. The claims "are premised on general attacks on the inadequacy of the FCC’s certifications” and cellphone manufacturers’ “alleged manipulations of testing results,” it said. The court agrees with precedent in the 9th and 3rd Circuits and the D.C. Circuit that state law claims attacking the safety of the SAR standard are preempted by federal law, it said.

Though the FCC disclaims any expertise in health or safety, “it set the SAR standard under a congressional mandate and in service of its broad statutory mandate to provide a uniform, efficient network,” said the ruling. The court likewise finds that this objective “extends to certifying” cellphones for sale and “ensuring manufacturers’ general compliance” with the SAR standard, it said.

A “patchwork” of testing protocols “would undermine the FCC’s well-established objectives by creating confusion among manufacturers,” said the ruling. That would raise the potential for unsafe phones “to pass into the marketplace,” or it would drive up costs for all manufacturers “as they strive to avoid ever failing any third-party testing, no matter its ultimate reliability,” it said. “Claims that attack the adequacy of the FCC’s certification procedures and testing protocols are preempted,” it said.

In its 2019 “reaffirmation” of the SAR standard, the FCC emphasized that under its standards, phones legally sold in the U.S. pose no health risks, said the ruling. The commission found that claims challenging the adequacy of the FCC’s certification regime were no different than a challenge to the adequacy of the federal RF exposure limits themselves, it said.

In its amicus brief filed in the district court proceedings for Cohen v. Apple, the FCC “also offered its view of how claims attacking the certification process obstructed agency objectives,” said the ruling. Cohen involved a class action suit brought by two dozen California plaintiffs seeking to represent all iPhone users in the U.S. Their complaint, based on third-party testing by the Chicago Tribune, alleged that iPhones had regularly exceeded the federal RF radiation exposure limit. The case is now on appeal to the Supreme Court from the 9th Circuit (see 2304170004).

The FCC’s amicus brief asserted that the Cohen plaintiffs’ claims, based on third-party testing of Apple phones previously certified for sale by the FCC, raised questions about the policy judgments that the FCC made in crafting its testing and certification procedures for authorizing the sale of cellphones in the U.S., said the ruling. The agency emphasized that the regulations mandate testing of the phones by an FCC-recognized accredited testing laboratory and consistent with FCC specifications concerning the testing protocol, it said.