Green Swan Inc.

800.279. 1344 1450 Grant Ave, Suite 205 Novato, CA 94945

Supervisor Jane Kim I Dr. Carlton B. Good lett Place City Hall, Room 244 San Francisco, CA 94102-4689 Dear Supervisor Kim: This follows upon the scientists' letter which was submitted to thi s Board on May 3 signed by many prestigious scientists, with the leading signature being that of Dr. Stanton Glanz of UCSF. Several other world class scientists have since added their endorsement to the letter. This letter is directly responsive to remarks which you made to Dr. Antoinette Stein. but will also be distributed to other members of the Board.
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As will be set forth herein, I have now practiced in trial law for more than 3S years, specializing in cases grounded in scientific proof. This letter accordingly deals in a preliminary way with the extent to which the Constitutionality of San Francisco' s cellular telephone ordinance may have been bolstered by the scientists' letter in the light of app licable legal authority, such as the four part test articulated in Central Hudson Gas & Elect. Corp. v. Public Service Commission of New York (citation supra). However, as I now work in a corporate capacity for a telecommunications related tech startup which is integrally involved in the cellular telephone safety dialogue, I have felt it more morally appropriate to issue thi s letter on our corporate stationary and have done so. The scienti sts' letter to your Board reported on the April 24, 20 13 monograph from the International Agency for Research on Cancer (lARC) of the World Health Organization establishing that cell radiation is now classified as a Group 28 carcinogen. The scientists' letter very partially chronicled some of the many other instances of medical finding cell radiation as a cancer cause during the three years since The City' s passage of the ordinance, now the subj ect of the proposed settlement passed out from

Rules late last month, and is now before this Board on May 7m. Antoinette Stein, PhD personally delivered exemplars of the scientists' letter to members of your Board, and/or staff last Friday. The scientist's letter underlines that cellular telephone microwave signal is now generally accepted amongst top scientists as a carcinogen. Dr. Stein reported to me that you and others had been very frank, and that, given the defeat of the ordinance so far in federal court, you noted that there is a fiduciary obligation to husband The City' s funds, such that, if the case is unlikely of success, the prudent step is advised "by legal" to be the abandonment of the action. I am currently employed as CEO ofa tech startup (www.greenswan.org). After the deaths of friends from brain cancer (lawyers were early adopters) I spent large portions of my time for several years as a volunteer activist in the area of the health consequences of non-ionizing radiation. In 2010 I served as the primary correspondent on behalf of the Environmental Health Trust to your Board regarding the subject ordinance. In addition to fax and email deli very, Ellie Marks and I hand delivered those letters to the office of every Supervisor. In response to your remarks to Dr. Stein, this note will cover some of the current legal and practical issues as 1 see them. From the above credential, you might expect that I write now solely to urge rejection of the proposed settlement. However, in the light of the scientists' letter advising us of the WHO classification of cellular radiation as a carcinogen, and in the light of the complex way in which that new cancer standard feeds back into the legal and fee dialogue, I recognize that it would be incredibly difficult for this Board to make a prudent determination in the tiny time frame so far allowed. Therefore, I respectfully recommend that a matter of this sudden complexity will require at least a month for analysis, perhaps more given the staff workload. This is true for medical, scientific, legal, and Constitutional reasons: 1 believe that the most prudent step is to allow time for study. Given the WHO development and its legal consequence, I respectfully suggest that it will take a minimum of at least 30 days for the staff of this Board and the Supervisors themselves to reach a prudent decision whether the current settlement should be approved. In this letter, 1 respectfully address the following concerns: Given the newly authenticated scientific data which has now been provided to this Board, prudent review of the decision to settle requires that the suggested settlement be continued on the Supervisor's calendar for at least 30 days. These scientific data affect legal issues at the heart of the case, as well as fees
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Issues. Considerable long term losses will accrue to the City and County of San Francisco if this settlement is approved in its present form. The current public policy di spute will not go away; due to the science it will become more strident as it becomes more docwnented. putting further pressure in industry. Both consumers and industry (my company is a member ofCTIA and for that matter I am supporter of Pacific Legal Foundation), as well as The City will miss an irreplaceable opportunity for wide-ranging resolution if the current limited language is approved. This Board has at least some opportunity, if time is allowed for discussion, to fashion a settlement of indelible world importance, which I see as appropriate for the city which gave birth to The United Nations. In the instance of a serious attempt at resolution, my company. Green Swan Incorporated, if welcome. could make a major technical contribution to help facilitate resolution of this polarized dialog. In so stating I speak for my company, and do not imply the endorsement of our product line by any entity.

I have been in litigation practice for more than 35 years and by estimate, I have handled or supervised the handling of approximately 1600 civil cases, and prior to my focus on civil trial work I had also served as defense counsel in hundreds of criminal law maters. During my years of practice I experienced approximately a half dozen cases in which our side did not prevail, rendering a positive outcome ratio in excess of 99%. My specialty expertise is in matters involving engineering and scientific proof: For example, one of CTtA' s senior lawyers, Mr. Mittelstaedt, represented the Chevron company in our class action involving contaminated aviation fuel. in which case I served as lead Plaintiffs Class Counsel: That was the largest aviation case in national history in terms of number of aircraft affected. as we obtained new engines for 1647 aircraft as a result of that ultimately amicable settlement, which took place in Judge Cahill' s Superior Court here in San Francisco. I have a substantial history in other mass tort litigation involving technical, engineering, and scientific proof and I hold several patents. I have also practiced before multiple federal courts located in California (including the Mobil Oil aviation lubricant litigation, with 850 aircraft. mostly twins, receiving rebuilt engines), and I have practiced in federal courts in Nevada. Tennessee, and Montana. As the primary correspondent to this Board on behalf of The Environmental Health Trust during the 20 I 0 effort, I authored eleven separate letters, each tailored to the known interests of the Supervisor involved, each bearing the same core points, which referenced developing science in areas relating to cellular telephony, and commented on advertising
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stratagems undertaken by the CTlA and industry regarding cellular telephony, and in particular regarding industry advertizing in opposition to the ordinance itself. An exemplar letter from that series is attached to this letter. These prior letters were despatched in 2010 to the Supervisors by email, fax , and personal delivery.

After that last letter, except for charitable work on the E HT Board, I intended to stay completely out of political dialogues. We are part of this industry, and seek to educate, not to condemn. However, Dr. Davis and Mrs. Marks and others urgently asked th at I speak before the Rules Committee and I did so, pointing out there that I have for now devoted my life to thi s issue, after the deaths of four friends of mine, one was as close as a brother to me, from glioblastoma.
Statistics never do justice to the tragedies of the mass events they chronicle. For example, the Danish Cancer Society in its study published on November 8, 2012 showed a doubling of the rate of the most deadly brain cancer in Danish men in the preceding ten years, though not blaming cell phones for that un-precedented increase. Those are just numbers on a page to the reader, and yet matters of inescapable horror to the participants. Given a situation this serious, there should be further study of both scientific and legal issues prior to the approval of any settlement. The above paragraphs sought to provide di sclosure, evidence, and context. This letter will now proceed to discuss political, legal, and scientific factors which mitigate towards the value of postponement of the calendared vote on thi s proposed settlement.

An Area Rich In Conflict

We know that several of the Supervisors are very conflicted over thi s issue, saying for example, that "it came from legal ," and recognizing a legitimate Constitutional dialog as a factor favoring settlement, and yet balanced against that, the same Supervisors and staff are convinced from study that safety abides from keeping cellular devices away from the head, such as through the use of wired headsets. It seems we are all conflicted here, even if not in the legal sense.

Mayor Lee apparently wants this matter settled. Yet, he wants the best health outcomes for hi s constituency, and he has not yet seen the scientists' letter which was lodged with thi s Board on May 3rd Since Mayor Lee leads a partnership which includes ATf in the SF CITI program, like the Supervisors who "try to do the right thing" he too may feel conflicted when he sees that cell phone radiation is now officially class ified as a carcinogen. I' m in the same boat: Having left the political fight on cell radiation so that I might have more effect through invention, my company holds patent-pending proprietary
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technology which issues voice alerts in multiple languages as an Android phone nears the head, eventually to be offered in other OS contexts. Our Too Close suite of apps, available at Google Play for Android, is the first warning system which gives a proximitybased verbal alert "Too Close !" in several languages. Our "highest and best" outcome is for our technology to be acquired by the mobile phone industry, which would increase notice to consumers, while also, by doing so, reduce the exposure of industry. Our company is a member of CTtA, and we feel understandable concern that our own best dreams for humanity might be squelched if CTIA were offended by this submi ssion. As with the Supervisors and staff who read this, I feel conflicted on this issue, on the one hand certain of the ri sks of cell exposure, as leading scientists have now con finned, on the other fearing retaliation from the second largest industry in the world. However, our Board of Directors issued a resolution more than a year ago allowing senior officers of the company to put humanitarian gain above profit, and it is with shareholder approval that I now plea for further study.
It is a tense time, but this would be the best time for all of us, industry, the Executi ve Branch of The City, the Supervisors, and those of us who are advocates for

telephone safety, to put behind us all the chrysalis of fear and accusation that has kept us from working together to solve this problem set. The Danger And The Opportunity As many of us have heard or seen, the traditional Chinese calligraphy symbols for "danger" and "opportunity" are similar in appearance. Likewise, the possibility of settlement of the wireless industry suit presents with both danger and opportunity. If the currently proposed settlement takes place as scheduled for the 7m, then the two s ides will further polarize, new legislation will be fostered at every level, important pending issues in the Senate will receive the full brunt of the brewing maelstrom over cellular and wireless radiation, and the polar extremes of view will progressively become further apart. This will ultimately work against the best interests of industry as well as the consuming public. The proposed settlement will not bring a lasting peace to anyone . More immediately, unexpected changed circumstances have radically improved the chances of The City to restore a positive position in federal court, either in this matter, or with a new ordinance which takes official note of advertising policies. The Legal Background The Ninth District Co urt of Appeal, citing Zauderer v. Office of Disciplinory Co unsel, 471 U.S. 626, 105 S.C!. 2265, 85 L.Ed.2d 652 (1986), stated that any

governmentally compelled disclosures to consumers must be "purely factual and uncontroversial." l d. at 65 1, 105 S.Cl. 2265. Although the District Court found the factual statements in the revised fact sheet required by the ordinance were accurate and not misleading, the Court of Appeal agreed with CTIA that the revised fact sheet contains more than just facts. Since it contains San Francisco's recommendations as to what cons umers should do if they want to reduce exposure to radiofrequency energy emissions it could be interpreted by consumers as expressing San Francisco's opinion that using cell phones is dangerous. The Appellate Court deferred to the FCC-established limits of radio[Tequency energy exposure, within which it concluded in 1996 that using cell phones is safe. See, e.g., Guidelinesfor Evaluating the Enw'l Effects of Radiofrequency Radiation, II F.C.C.R. 15123 , 15184 ( 1996). 'Ibe Court of Appeals also pointed to findings made by the San Francisco Board of Supervisors acknowledging that "[t]here is a debate in the scientific community about the health effects of cell phones," and the district court observed that "San Francisco concedes that there is no evidence of cancer caused by cell phones." As the present letter points out, many new facts and scientific studies have emerged in the 17 years since 1996 and even since the Appellate Court decision of September 10,2012. The Board of Supervisors should not be limited to the FCC's findings of 1996, or even its own findings and conclusions in 20 lO, but rather, in the interest of public safety, the Board should be permitted and encouraged to use recent scientific data, such as the World Health Organization's 20 13 findings discussed infra. The Appe llate Court stated that it could not say that the fact sheet, as modified by the district court, is both "purely factual and uncontroversial" citing Zauderer, 471 U.S. at 651 , 105 S.Ct. 2265. The court of appeal found that the di strict court erred in holding that the city could compel distribution of the revised fact sheet. The opinion appeared to hold that if the fact sheet no longer contained recommendations, it would be permissible as "factual" and "non-controversial." The facts in the fact sheet can now be strengthened and supported by recent developments, including the WHO report, which contains current, cutting edge scientific information which is factual a Dd nOD controversial to the extent that the World Health Organization tends to renect global consensus. The fact sheet recommendations for safe cell phone use are "purely factual" and not "controversial." The cell phone industry' S own safety warnings contained in the user guides of every cell phone recommend similar safety precautions such as maintaining minimum distance from the body. Further, the San Francisco fact sheet recommended
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precautions are based upon the data and safety recommendations of qualHjed scientists, not fringe alarm ists. The safety precautions are not "controversial." If the existence ofa disagreement makes something controversial, then everything is controversial, because most factual analysis is subject to disagreement, including scientific fact. A significant number of scientists dispute climate change, yet the fact that the climate is changing is not really controversial any more. At a minimum, the WHO study conclusions and developing scientific studies should compel further evaluation by the SF Board of Supervisors before it determines this issue of great public health and safety concern. Deve lopments in science mandate that this Board engage in prudent further study. The following is a quotation from the recently released World Health Organi zation's Intern ational Agency for Research on Cancer, Monographs on the Evaluation of Carcinogeni c Risks to Humans, Volume 102 (20 13), Non- Ionizing Radi ation, Part 2: Radiofrequency Electromagnetic Fields: "The bulk of evidence carne from reports of the INTERPHONE study, a very large international, multicentre case-control study and a separate large case- control study from Sweden on gliomas and meningiomas of the brain and acoustic neuromas. While affected by selecti on bias and information bias 10 varyi ng degrees, these studies showed an association between glioma and acoustic neuroma and mobile-phone use; specifically in people with highest cumul ative use of mobile phones, in people who had used mobile phones on the same side of the head as that on which thei r tumour developed, and in people whose tumour was in th e temporal lobe of the brain (the area of the brain that is most exposed to RF radiation when a wireless phone is used at the ear) ... The case for specialized notice for cell phone purchasers is particularly compelling due to tile increased risk to children. Scientifi c research shows that children's brains are far more susceptible to the radiation emitted from cell phones than adults, due to a combination of factors including skull size and softness. Scientific organ izations are conservative by nature regarding announcement of definitive conclusions, their expressions of concern and calls for research should not be interpreted as alarmi sm, but rather an indication that scientific evidence shows that the dangers are real. In addition to the World Health Organizati on, acclaimed scientists worldwide are invo lved, including the American Academy of Pediatrics (AAP) which represents more than sixty thousand

physicians nationwide. The correspondence from the American Academy of Pediatrics can be found at our company website, www.greenswan.are.. The extent to which a government entity can require a safety warning is directly proportional to the severity of the known risk. The first amendment issues here are genuine and serious. The first amendment promotes the principle of free speech and has also been interpreted to forbid "compelled speech." R.J. Reynolds Tobacco Co. v. FDA, 845 F. Supp. 2d 266, 268 (D.D.C. 2012) Government mandated warnings are viewed as compelled speech. Certain commercially related compelled speech is excepted from the First Amendment prohibition against compelled speech. The Supreme Court set out the standard of review in Zauderer v. Office of Disciplinary Counsel 471 u.s. 626 (/985) for determining when commercial speech may be regulated or compelled. In Zauderer, the Court held that requirements to disclose factual commercial information would be subjected to something resembling rational basis review: to pass constitutional muster, the requirements must be " reasonably related to the State's interest in preventing deception of consumers." The cell phone radiation warnings required in San Francisco present "factually accurate information" and thus prevents deception to consumers who do not have the facts presented. While the industry interests dispute this, the factual and scientific accuracy is being developed at a rapid pace, and certainly many facts have been uncovered since the Ninth Circuit issued its appellate decision on September 10, 2012. The state not only has an interest in preventing deception to consumers, it has an interest in protecting the health of its citizens. While such a public health interest should not be abused at the expense of the First Amendment, absolute proof of harmfulness should not be the standard to meet before a state can act by requiring warnings. The Supreme Court in Central Hudson Gas & Elect. Corp. v. Public Service Commission of New Yark held that, in commercial speech cases a four-part analysis has developed. First a court must determine whether the expression is protected by the First Amendment. For commercial speech to come within that provision, it at least must concern lawful activity and not be misleading. Next, the court asks whether the asserted governmental interest is substantial. lfboth inquiries yield positive answers, the court then determines whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest. Central Hudson (1980) 447 U.S. 557, 566 [100 S.Ct. 2343, 2351 , 65 L.Ed.2d 341]

In fact, governmentally required posting is extremely common in the United States, and in California. Employers are required to post notices of employee rights in workplaces, and may be subject to civil liability for failing to do so. Imagine hypothetically the sorry plight of a restaurant owner who protested the "wash your hands before returning to work" notices posted bilingually in the bathrooms: We would think him mad. Given the WHO brain cancer standards and the other factors cited in the scientists' letter, the ri sks of cellular phone exposure may be greater in tenns of net medical effect than the risks presented by unwashed hands. Also, consider please, the expense that indigent (and other) brain cancer patients will impose on San Francisco. For one area of concern, Laguna Honda, funded by the incredibly wise expenditure, in part, of tobacco litigation funds, is the crown jewel of elder care in San Francisco, and by far the best such facility in the State. Though there is certainly no hard and fast number, brain cancer costs, all totaled, are often spoken of as a "million dollar illness," just for the surgery and decline expense, and that is without any reference to the loss of productivity involved. Even one brain cancer case would likely eclipse the City' s fee exposure from the Wireless litigation. Further, public policy issues may not mitigate towards a substantial fee award; even accepting that legitimate issues have been raised in the litigation so far (which shall assist Supervisors in framing better legislation next time if this does not settle we ll): The Civil Rights Statutes such as 42 USC 1983 were framed to protect the rights of the downtrodden. However, eTIA is not a downtrodden organization, and San Francisco is not acting out of ill wi ll, but just the opposite. The District Court wi ll have wide discretion on the fees issues, and the outcome in that regard is far from certain. The San Francisco ordinance is not misleading ifit is factual. The ordinance recommendations are themselves factual in that they describe safety precautions such as distance from the device as stated in the manufacturers' own instructions. The allegedly "misleading" nature of the recommendations is not for the purpose of commercial advantage, but rather to support public safety. This advances the asserted governmental interest of protecting public health. There is also a strong side interest of protecting the public coffers, as health costs are a significant portion of public expenses. The final question is whether the ordinance is "more extensive than necessary." Again, the factual statements cannot be more extensive than necessary since they are factual and accurate. The SF safety recommendations are similar to the manufacturers' recommendations, and ifunifonnly employed are unlikely to deter use of cell phones, but seek only to increase the safety of that use. As described previously, there are more cell phones than people in the United States.
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Absolute conclusive proof of a carcinogenic effect on one individual or another is not the proper test. Rather, if the scientific evidence presents a strong and increasingly growing case for health concern, do not the people have a right to know and be informed, and does not the government have a strong interest in providing safety warnings? Conclusion After a weekend of hard work, this letter, which does not reach the level of our ordinary pleading standards, has been pounded out on the home computer in my library. Doubtless flaws in pedantry will be found, and given the time limits involved, not all will be corrected. It is a rushed job, but the points sought to be made are clear:
I) The City and County of San Francisco should put consideration of the pending settlement proposal off for at least 30 days, so as to allow the Supervisors and staff to complete prudent study of the issues, and: 2)1be scientific data shown and referenced in the scientists' letter may affect legal issues at the heart of the case, and by doing so affect fees issues, and: 3) The City will miss an irreplaceable opportunity for wide-ranging resolution if

the current settlement language is approved, and:

4) Considerable long term losses will certainly accrue to the City and County of San Francisco if this settlement is approved in its present form .

Cordially yours,

..l~d
Harry V. Lehmann

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