U.S. Phonegate? Cell Phone Safety Guidelines Exceeded in Study – Lawsuit Follows

FCC Safety Guidelines Were Exceeded in Chicago Tribune Cell Phone Tests: New Lawsuit

The Chicago Tribune, in August 2019, investigated cell phone safety by testing 11 models of popular cell phones, both according to the manufacturers recommended distance from the head (5 to15 mm), as well as in a manner consistent with how they are used, i.e. close to the head. The accredited lab found that with some of the phones the levels exceeded the FCC guidelines both at recommended positions and in close proximity to the body.  A class action lawsuit was filed against Apple and Samsung  by a group of lawyers in California, Illinois and Iowa who state the manufacturers “intentionally misrepresented” the safety of these phones. The attorneys argue that numerous scientific publications show that radiofrequency radiation exposure affects living organisms at levels well below international guidelines. These RF guidelines are based only on heating of tissues, not demonstrated complex biological effects.  Dr. Lennart Hardell points out in his research that increased usage of both cell phones and cordless phones, which emit fairly similar radiation levels, is associated with brain tumors. If the lawsuit is found valid will this be the Phonegate of the United States?

Updated 1/28/23

Update- Here is the lawsuit which has gone to the Supreme Court and decision followed by an appeal from petitioners. The main decision being fought is FCC preemption to broadly regulate wireless devices and infrastructure.

Cohen vs Apple- 2022 United States Supreme Court. Court of Appeals for the Ninth Circuit. Plaintiffs state that Iphones were found to regularly exceed FCC safety limits in independent testing and that Apple breached state tort and consumer-fraud laws by misrepresenting and failing to disclose the amount of radiofrequency (“RF”) radiation emitted by iPhones. Plaintiffs alleged that RF radiation emitted by iPhones regularly exceeded the federal exposure limit, and they brought eight claims against Apple under state tort and consumer-fraud laws.  The district court entered summary judgment for Apple, holding that the plaintiffs’ state-law claims are preempted by federal law. We have jurisdiction under 28 U.S.C. § 1291 and affirm. We hold that the district court had subject matter jurisdiction and that plaintiffs’ claims are preempted. The panel also held that the twin Communications Acts, the Communications Act of 1934 and the Telecommunications Act of 1996, granted to the FCC broad regulatory powers over wireless

Cohen vs Apple Appeal Cohen v. Apple – Petition for Writ of Certiorari   to U.S. Court of Appeals  Ninth Circuit. Jan 23, 2023.  The Petition reviews statutory and regulatory law with regards to the FCC and telecommunications . The Petitioners argument to the Ninth Circuit Court … “This case clearly presents an opportunity to resolve a longstanding split and, at the same time, to settle a far more fundamental rift in the jurisprudence of implied agency preemption. In doing so, the Court can ensure that lower courts remain faithful to the Constitution’s balance between both the state and national governments, on the one hand, and the judicial, executive, and legislative powers, on the other….When a law of the United States is said to preempt state law, our “system of dual sovereignty between theStates and the Federal Government,” Gregory v. Ashcroft, 501 U.S. 452, 457, 460 (1991), requires that the inquiry “start[] with the basic assumption that Congress did not intend to displace state law,”

FCC Testing Showed All Phones Were Under the FCC Limit… But Questions Remain

After the Chicago Tribune story, the Federal Communications Commission(FCC) conducted their own research on levels of radiation emitted by certain cell phones and found all were under the FCC limit. The FCC results, dated Dec 10, 2019, show that 4 companies phones were examined for SAR or specific absorption rate  (Apple, BLU Products, Motorola, Samsung). The models tested were the iPhone 7, iPhone X, iPhone XS, Vivo 5 Mini, Moto e5 Play, Moto g6 Play Galaxy S9 and the Galaxy J3. Concerns about the testing were raised, however, as Dr. Joel Moskowitz noted that Apple provided the 2 model phones to the FCC for testing, instead of buying these off the shelf as the Chicago Tribune had done. Also special software was sent by Apple to test the phones leading to further questions of why software was needed and why this was done in an FCC laboratory, not in an independent lab.

Is SAR Testing of Phones Adequate or Appropriate?

Many have questioned the adequacy and accuracy of FCC cell phone testing. Gandi (2004)   performed modeling for SAR testing and recommended the use of more accurate anatomic models along with fluid more consistent with that of human tissue. The current testing is done with a model of an adult male head called  “SAM” (specific anthropomorphic mannequin), a representation of top 10 military recruits in 1989.  The model is based on a 6 foot 2 inch male weighing 220 pounds, representing only 10 % of the population. Dr. Joel Moskowitz points out in his Safer EMR blog that,

  • The GAO (Government Accountability office) has called for reevaluation of cell phone safety testing since 2012.  The GAO recommends formal reassessment and ,  mobile phone testing requirements related to likely usage configurations, particularly when phones are held against the body.”
  • The FCC’s two-decade-old cell phone testing procedures allow for a 30% margin of error.FCC SAR limits Swankin Turner Letter to FCC Sept-9, 2016
  • Testing measures absorption of heat, not adverse non-thermal biological effects demonstrated in the scientific literature
  • Chronic effects  of long-term use as well as effects on vulnerable populations such as children or pregnant women are not considered (nor are low SAR phones offered)
  • The FCC is a Captured Agency with a revolving door of industry leaders who are tasked with regulating their own industry, a scenario seen in chemical regulation.

The Secret Inside your Cellphone – CBC Marketplace Investigation

The Canadian Broadcast Company (CBC), in 2017, produced this eye opening investigation into why the warnings about cell phone use are hidden deep in the phone. They also show how they tested smart phones as they are used, against the head, using a qualified laboratory that tests cell phones. The reporter asks relevant questions as she travels to find the answers. The recommendations from experts include keeping your phone away from your body unless on airplane mode and to keep your old fashioned but safer, more secure and clearer landline.  The article, 8 Reasons to Keep Your Landline, discusses why this is a cord you may not want to cut.

Lawsuit Dismissed on Grounds of Preemption

In a stunning decision, Judge Alsup ruled on April 20, 2020 in Cohen v Apple by granting  Apple’s motion for summary judgment. He found that the claims were preempted because they conflict with the FCC’s regulatory authority over cell phones. The court stated, “Insofar as those claims require the Court to review the validity of the FCC’s 2019 decision to retain its existing certification procedures, the Court lacks jurisdiction over them because any such claims are subject to the Hobbs Act and thus can only be brought in a court of appeals in a direct challenge to that FCC order. Any claim that FCC-certified cell phones are unsafe is also preempted by federal law, because it conflicts with the FCC’s judgment that cell phones that satisfy the FCC’s RF standards pose no health risk and may be certified for sale in the United States.”

Over-warning or Over-authority?  FCC  Omits Key Health Studies

The court restated that the FCC must balance efficiency and safety by not “overwarning” the public, declaring, “it is evident that the Commission intended to create a uniform, nation-wide regime that balanced competing objectives of safety and efficiency. This order finds that plaintiffs’ claims threaten that careful balance in the equipment-authorization regime, whether plaintiffs challenge the testing procedures or merely seek to enforce the existing RF standards.”  and,  ““has a legitimate interest in guarding against ‘overwarning’ about
the potential dangers of a product sold to consumers. ” 
This is a catch 22, as the FCC has recently been sued for omitting key scientific studies showing harm from cell phones and wireless radiation.

Berkeley Cell Phone Right to Know ” Ordinance Falls With Similar Court Law That Highlights Laws over Logic

Letters to the Court for Cohen vs Apple from the FCC are quite similar and indicate the level of power of the FCC.

French Phonegate: 2017

Dr. Marc Arazi pushed for information on studies done by the National Frequency Agency (ANFR) of France in 2015, looking at RF radiation levels tested in contact with the body, not at the separation levels set by manufacturers (5-15mm away) that are within the safety guidelines.  The French health agency tested a variety of common cell phones including Apple, Motorola, Samsung and Nokia, at typical user distances, which is on the body. Their report on the 450 phones tested revealed that 89% of cell phones exceeded the safety standards by 3 fold. Dr. Azari tried repeatedly to get the results and states, “After months of difficult and restrictive legal and media actions, on June 1, 2017, I finally obtained the ANFR publication of the partial results of the SAR values of 379 mobile phones tested, including the individual makes and models concerned. This initial victory of transparency permitted us to learn that this issue concerned nearly all mobile phones sold in France and in Europe.”

Dr. Ghandi published an analysis of the report in 2019 stating, “The National Agency ANFR of France recently released the cell phone SAR test data for 450 cell phones that measure 10-g SARs reducing by 10%–30% for each millimeter distal placement from the planar body phantom. Their data corroborate our findings that most cell phones will exceed the safety guidelines when held against the body by factors of 1.6–3.7 times for the European/ICNIRP standard or by factors as high as 11 if 1-g SAR values were to be measured as required by the U.S. FCC.”

Dr. Azari Urges Agencies to Perform Safety Testing of  Phones in the Way They Are Used

Dr. Azari, who exposed the explosive data, urged cell phones to be tested in the way people commonly use them, adjacent to the body. He also implored agencies to perform more research taking into account children’s smaller size and increased absorption of radiation.  The term “Phonegate” was used to describe the scandal with  similarities to the “Dieselgate” scandal of Volkswagen, where industry tests showed emissions were within regulation in the lab, however in actual driving tests they exceeded regulatory limits. Dr. Arazi discusses this issue (and more)on a guest blog  Between a Rock and A Hard Place

4 Fold Increase in Brain Tumors in France in 30 years

Dr. Arazi notes that data by the French public health agency show a  4 fold increase in glioblastoma over the last 30 years. His website Phonegate Alert is in French with articles translated into English.

Phonegate Brain tumor increase 2018 Screen Shot 2019-11-29 at 11.11.15 AM

French Government in 2019  Requests That Cell Phones be Tested next to the Body 

On Oct 25, 2019 The French Government issued a press release to ask citizens to reduce their exposure to cell phone radiation, and also ask manufactures to develop phones with lower RF emissions. This was clearly a response to the now transparent data from their own health agency.

Paris, October 25, 2019
Government acts to limit exposure to certain mobile phones and better inform the public
The National Agency for Food Safety, Environment and Labor (ANSES) published on 21 October 2019 its opinion on the health effects related to waves emitted by mobile phones when used close to the body. The opinion does not reveal a serious and immediate danger but underlines that the results of the scientific studies published to date do not make it possible to exclude the appearance of biological effects in the man beyond certain thresholds.
In a precautionary approach, the Ministers of Ecological and Solidarity Transition, Solidarities and Health and Economy and Finance have decided to undertake the following actions, which will meet the recommendations made by ANSES. They will be conducted with the support of the National Frequency Agency (ANFR):
1 ) France will ask the European Commission to reinforce the requirements for new mobile phones put on the market. As recommended by ANSES, the Government will request that the approval tests be carried out in contact with the apparatus, and not 5 mm as is currently the case, so that they are more representative of the actual exposure. users ;…

Phonegate- Government acts to limit exposure to certain mobile phones and better inform the public. October 2019- English translation

Berkeley Finally Wins “Cell Phone Right to Know” Ordinance 2019

Despite years of challenges by industry, Berkeley and its citizens have finally claimed victory over Big Telecom in December 2019. The city is now able to require retail phone stores to state the same information telecom provides to warm its customers about the use of cell phones in the fine print in their phone manuals.  In 2014, a  cell phone “right to know” ordinance was proposed to the Berkeley City Council that simply stated the manufactures warning to keep a distance between the phone and the head when on calls must be be clearly posted at the point of sale. The council was provided scientific information regarding potential hazards of cell phone radiation. In 2015 a survey by the California Brain Tumor Association was also submitted. The survey showed that two out of three (66%) were unaware that cell phone manufacturers recommend that their cell phones be carried away from the body, or used with hands-free device. It also revealed that almost three out of four (74%) reported that they or their children carry a cell phone against their body. The ordinance was passed but continued to have legal challenges by industry until Dec 2019 after the Cellular Telecommunications Industry Association (CITA) appealed to have the Supreme Court hear the case. The Supreme Court rejected that challenge. Now other cities can adopt similar ordinances to inform consumers with the same precautionary information provided by industry, although further legal challenges are predicted by the telecom industry.

NTP Study Confirms DNA Damage and Carcinogenicity of Cell Phone Radiation

More news from the National Toxicology Program (NTP) on cell phones and cancer. In 2020 they published their final results on one of the most well designed and carefully performed group of U.S. studies on cancer and radiofrequency radiation that is emitted from cell phones. After 10 years of research and over $30 million dollars the results confirm DNA damage and carcinogenicity, in addition to cardiac effects.  The National Toxicology Program (NTP) has updated their website  with links to their research. The National Toxicology Program plans to research 5G technologies next.

NTP 1AScreen Shot 2019-11-26 at 10.21.34 PM

NTP 1Screen Shot 2019-11-26 at 9.18.37 PMNTP 2Screen Shot 2019-11-26 at 9.19.02 PM

NTP 3A Screen Shot 2019-11-26 at 10.25.04 PM

NTP 4 A Screen Shot 2019-11-26 at 10.27.47 PMLink to NTP page- Cell Phone Radiofrequency Radiation. NTP. Nov 25, 2019. https://ntp.niehs.nih.gov/whatwestudy/topics/cellphones/index.html

See also

News Articles

Related NTP Publications

  • Smith-Roe SL, Wyde ME, Stout MD, Winters JW, Hobbs CA, Shepard KG, Green AS, Kissling GE, Shockley KR, Tice RR, Bucher JR, Witt KL. Evaluation of the genotoxicity of cell phone radiofrequency radiation in male and female rats and mice following subchronic exposure. Environ Mol Mutagen. 2019. https://doi.org/10.1002/em.22343 [epub ahead of print]
  • Wyde ME, Horn TL, Capstick MH, Ladbury JM, Koepke G, Wilson PF, Kissling GE, Stout MD, Kuster N, Melnick RL, Gauger J, Bucher JR, McCormick DL. Effect of cell phone radiofrequency radiation on body temperature in rodents: Pilot studies of the National Toxicology Program’s reverberation chamber exposure system. Bioelectromagnetics. 2018; 39:190-199 https://doi.org/10.1002/bem.22116
  • Capstick MH, Kuehn S, Berdinas-Torres V, Gong Y, Wilson PF, Ladbury JM, Koepke G, McCormick DL, Gauger J, Melnick RL, Kuster N. A radio frequency radiation exposure system for rodents based on reverberation chambers. IEEE Trans Electromagn Compat. 2017; 59(4):1041-1052 https://doi.org/10.1109/TEMC.2017.2649885
  • Gong Y, Capstick MH, Kuehn S, Wilson PF, Ladbury JM, Koepke G, McCormick DL, Melnick R, Kuster N. Life-time dosimetric assessment for mice and rats exposed in reverberation chambers for the two-year NTP cancer bioassay study on cell phone radiation. IEEE Trans Electromagn Compat. 2017; 59(6):1798-1808 https://doi.org/10.1109/TEMC.2017.2665039
  • Wyde M, Cesta M, Blystone C, Elmore S, Foster P, Hooth M, Kissling G, Malarkey D, Sills R, Stout M, Walker N, Witt K, Wolfe M, Bucher J. Report of partial findings from the National Toxicology Program carcinogenesis studies of cell phone radiofrequency radiation in Hsd: Sprage Dawley SD rats (whole body exposure). BioRxiv 055699 [Preprint] May 26, 2016 (modified Feb 01, 2018). https://doi.org/10.1101/055699
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