The International Agency for Research on Cancer (IARC), a division of the World Health Organization (WHO), recently reclassified cell phone radiation emissions as a “possible carcinogen”. Forbes explored the decision, entered on May 31, 2011, in a recent article that looks at the potential for a spike in corresponding litigation. Cell phone radiation, which is emitted as radiofrequency (RF) electromagnetic fields, was linked to an increase in the risk for glioma, a type of brain cancer. More specifically, the IARC study showed that there was a 40 percent increased risk for glioma for people that used their cell phone for an average of 30 minutes per day over a 10-year period. Critics point out that the study was flawed, in that it began with those who already had cancer and asked them to recall how often they used their cellphone during the last decade.
Regardless of how IARC reached the “possible carcinogen” classification, many are predicting a sharp increase in litigation associated with cancer fears. On October 25, 2010, the Third Circuit Court of Appeals affirmed a holding from the Eastern District of Pennsylvania that preempted a class action based on federal law. The class action lawsuit claimed that several companies within the cell phone industry conspired to market cell phones without adequate warnings or headsets. In affirming the dismissal of that suit, the Third Circuit found that Congress delegated the regulation of human RF exposure to Congress, and that “juries should not be permitted to create a patchwork of differing standards that would undermine the efficiency of the nationwide system.” However, on the same day that IARC released its recent reclassification, the U.S. Supreme Court asked the U.S. Solicitor General to file a brief on whether the Supreme Court should review the dismissal. Whether the Supreme Court reviews the case, and where the Court ultimately falls on the issue, will determine the future of RF exposure litigation.
