Last week, the French government requested that Apple stop selling the iPhone 12 model because of excessive radiation detected during recent tests. The Agence National des Fréquences [ANFR] stated that “…Apple must immediately take all measures to prevent the availability on the market of the phones concerned present in the supply chain. Regarding phones already sold, Apple must take corrective measures as soon as possible to make the phones concerned compliant. Otherwise, it will be up to Apple to recall them.”
THE EUROPEAN UNION SAFETY TESTING
The European Union [EU] has two measures for devices operating in the frequency range of an iPhone 12. These measurements include the “head and trunk” value when the device is against the head or is in a pants pocket. The other measurement is a “limbs” value when the device is in the hand, clothing, or accessories. The ANFR measured the iPhone 12 as exceeding the normal “limbs” value of 4.0 W/kg. It was recorded at 5.74 W/kg.
The decision of the ANFR created waves through Europe and other countries, including Belgium, Netherlands, and Germany, who expressed concern. Apple disputed the testing result but suggested that it was offering a software fix to reduce the radiation emitted.
RF RADIATION TERMINOLOGY
Radiofrequency electromagnetic waves are known as RF radiation. There are two main categories of RF radiation. One is known as ionizing radiation, which is extremely dangerous and can alter DNA. The second type is non-ionizing radiation. It can’t alter DNA but can cause biological effects by increasing tissue temperature. Cell phones emit non-ionizing radiation and should not, according to governmental standards, should not radiate enough energy to generate thermal effects. The European Union’s [EU’s] standards were established to protect human tissue from the damages caused by excessive absorption rates.
ALLEGED MEDICAL ISSUES
Controversy continues over human medical issues associated with non-ionizing radio frequency exposure. Several studies have indicated evidence that the assumptions underlying the FCC and the International Commission on Non-Ionizing Radiation Protection [ICNIRP] concerning exposure limits are invalid and are harmful to humans. “Adverse effects observed at exposures below the assumed threshold SAR include non-thermal induction of reactive oxygen species, DNA damage, cardiomyopathy, carcinogenicity, sperm damage, and neurological effects, including electromagnetic hypersensitivity. Also, multiple human studies have found statistically significant associations between RFR exposure and increased brain and thyroid cancer risk.” International Commission on the Biological Effects of Electromagnetic Fields (ICBE-EMF). Scientific evidence invalidates health assumptions underlying the FCC and ICNIRP exposure limit determinations for radiofrequency radiation: implications for 5G. Environ Health 21, 92 (2022). https://doi.org/10.1186/s12940-022-00900-9 . See also Balmori, A. (2022). Evidence for a health risk by RF on humans living around mobile phone base stations: From radiofrequency sickness to cancer. Environmental Research, 214, 113851. https://doi.org/10.1016/j.envres.2022.113851; Miller, A. B., Sears, M. E., Morgan, L. L., Davis, D. L., Hardell, L., Oremus, M., & Soskolne, C. L. (2019). Risks to Health and Well-Being From Radio-Frequency Radiation Emitted by Cell Phones and Other Wireless Devices. Frontiers in Public Health, 7. https://doi.org/10.3389/fpubh.2019.00223
CELLPHONE ADOPTION ACCELERATES
Cell phones have become an essential tool in the workplace and a significant source of revenue for their manufacturers. In 2022, Apple generated over $205 Billion from iPhone sales, accounting for over 52% of its net sales.
Motorola launched the initial commercial cellular network in 1973 as a 1G analog system. It has expanded to the current 5G protocol that has yet to be standardized by the industry. Over 90% of the population worldwide now own a cellphone. Apple CEO Tim Cook recently said at the iPhone 15 and iWatch9 launch, “They’re with us all the time, and if you left either one at home, I bet you’d go back and get it.”
CELLPHONES ARE PROLIFERATING IN THE WORKPLACE
Over 75% of U.S. employees use their cell phones for work. 84% of companies have a bring your device (BYOD) to work policy. 51% of employees use company-mandated apps to do work on their cell phones. When employees use cell phones for work, managers and executives say they see a 34% increase in productivity. 82% of employees say social media strengthens their relationships with coworkers and colleagues. 48% of employees use their cell phones for work at least an hour daily.
Civil litigation discovery from emerging occupational disease claims has historically provided ancillary litigation support in proving non-fault workers’ compensation claims. That is not the case for cellphone radiation. Attempts to attribute ultimate wrongdoer liability upon the manufacturers of cell phones have not been successful, so civil litigation is inactive. The Fourth Circuit Court of Appeals rejected a claim against Apple under state tort law and consumer fraud laws for excessive cell phone radiation emission. The court reasoned that the Communications Act of 1934 pre-empted state and local regulations. The court held that the Federal Communications Commission [FCC] pre-empted standards and the regulation of cellphone admission standards by state and local governments. The court concluded that a claim could not be instituted by an end user against the manufacturers for regularly exceeding federal exposure limits for breach of California tort law and for the failure to disclose that the Apple phones exceeded the limits established by the State of California and the limits set by the FCC. Cohen v Apple, Inc, 46 F. 4th 1012 (4th Cir. 2022), Certiorari denied 143 S.Ct. 2513, U.S. May 23, 2023.
WORKERS’ COMPENSATION REMEDY
Some state workers’ compensation acts, including New Jersey, recognize radiation exposure as an occupational disease and afford injured workers and their dependents a remedy. The disability or death causally related to radiation must result from an exposure that “arises out of and in the course of employment.” Timely notice and the workers’ compensation claim filing must be satisfied under statutory requirements.
As with all occupational disease claims, a causal relationship must be established between exposure, illness, and disability. Occupationally induced or aggravated malignancies result in some of the most severe types of workers’ compensation claims under New Jersey law.
“Any exposure to a carcinogen at work increases the level of risk and, therefore, may establish a causal relationship. A radiologist exposed to radiation in his workplace daily for 18 years was able to establish that the exposure was peculiar to his employment and contributed to the development of his occupationally induced chronic myelogenous leukemia at age 53. Evidence was presented that the projected death rate from workplace exposure alone was almost three in a thousand, and the rate of contracting the disease was almost five in a thousand. Additionally, it was established that the uranium isotope camera utilized emitted gamma rays to x-ray welds and that the annual maximum exposure was required to be less than 5 rems. 10 C.F.R. 20.1201, 1201(a)(1)(i). The radiologist's highest annual exposure was 1,850 rems. For his 18 years of employment, his permissible total would be 90 rems, while his actual exposure was 22,467 rems. Woolf v. Consolidated NDE, Inc., 350 N.J.Super. 590, 796 A.2d 906 (App.Div.2001)." Cancer—Occupational exposure to carcinogens/aggravation and acceleration, Gelman, Jon L, Workers’ Compensation Law, 38 NJPRAC 9.18 (Thomson-Reuters 2023.)
The New Jersey Legislature has established presumptions as to causation for public safety workers [PSW] and firefighters. “The cancer involved must be a type of which may be caused by exposure to heat, radiation, or known or suspected carcinogen as defined by the International Agency for Research on Cancer [IARC].” Presumption of an occupational illness or death, Gelman, Jon L, Workers’ Compensation Law, 38 NJPRAC 19.28 (Thomson-Reuters 2023.)
In May 2011, the IARC classified radiofrequency electromagnetic fields as possibly carcinogenic to humans (Group 2B) based on an increased risk for glioma, a malignant type of brain cancer, associated with wireless phone use. Non-ionizing Radiation, Part 2: Radiofrequency Electromagnetic Fields. Non-Ionizing Radiation, Part 2: Radiofrequency Electromagnetic Field, IARC Monographs on the Evaluation of Carcinogenic Risks to Humans, Volume 102, IARC, 2013 (Lyon, France).
The controversy over cellphone use and illness and disease is ongoing. It is a debate that mirrors such exposures as asbestos, tobacco, opioid use, and artificial sweeteners. In those cases, the US regulatory agencies reversed their opinions as more scientific research became readily available, and a torrent of litigation ensued. For now, as in the past, the workers’ compensation system will assume the role of the decision-maker in this ongoing argument over safety in the workplace.
Jon L. Gelman of Wayne, NJ, is the author of NJ Workers’ Compensation Law (Thomson-Reuters) and co-author of the national treatise Modern Workers’ Compensation Law (Thomson-Reuters). For over five decades, the Law Offices of Jon L Gelman 1.973.696.7900 firstname.lastname@example.org have represented injured workers and their families who have suffered occupational accidents and illnesses.
Blog: Workers ' Compensation
LinkedIn Group: Injured Workers Law & Advocacy Group
Author: "Workers' Compensation Law" West-Thomson-Reuters