Lawyers Probe
Mobile Health Risk Liability
Communications Week International
Journalist: Sheridan Nye
July 7, 1999
Research from an industry-funded body in the United States has renewed
concerns about potential health risks from using mobile phones - even before
any solid scientific evidence has emerged. While scientists emphasize that
no direct link has yet been found, mobile phone manufacturers are getting
inquiries from worried customers and are already seeking advice from
litigation experts.
Although manufacturers claim they have only received a limited numbers of
customer calls, the renewal of the health debate has raised the spectre of
legal liability. Lawyers are advising manufacturers they should protect
themselves by making sure they keep up-to-date with scientific research.
The latest results come from Wireless Technology Research LLC, of Washington
DC, which last month revealed a summary of its findings to the media in the
United Kingdom and the United States.
The WTR said it returned only two findings out of more than 40 studies that
could indicate a worrying link between cellphone use, brain cancer and
genetic change. It measured changes in chromosomes when human blood cells
were exposed to non-ionizing radiation from phones.
In population studies, it found no overall increase in the incidence of
brain cancer, but "a statistically significant risk" of a rare tumor called
a neurocytoma. This type of tumor grows inwards from the surface of the
brain, suggesting a possible link with an external source of radiation, say
experts.
Although WTR chairman George Carlo stated that the results were
inconclusive, proving only the need for further research - and numerous
other studies over the years have failed to prove any direct correlation
between mobile phone use and health risks - Carlo said the WTR findings take
the issue into "a gray area" for the first time.
If clear health risks are ever demonstrated at a later stage, the
manufacturer will take ultimate responsibility in the event that an unsafe
phone reaches the market, said Trevor Asserson, litigation partner at law
firm Bird and Bird, London.
But under the U.K. Consumer Protection Act 1987, and the European
Community's Product Liability Directive, manufacturers are covered by the
"state of the art" defense, Asserson said. This states that manufacturers
will only be liable if they have failed to keep up with known scientific and
technical findings at the time the phone was distributed.
However, they would be liable if their phones merely kept pace with formal
regulations, as these may take several months to change after new scientific
papers are published, he added.
Employers worried about distributing phones to their staff should ensure the
devices are issued in their original packaging where possible, Asserson
suggested. This usually contains the manufacturer's warning to the effect
that "some people think there may be a health hazard, although no scientific
evidence has been produced," as well as advising users how to minimize
exposure.
Corporates themselves would also be well advised to keep up with the latest
findings, added Asserson. "Although they can, in theory, pass on their own
liability to the manufacturer, in practice the manufacturer might have a
defense not open to the distributor, or might simply have gone bust," he
said.
When corporate customers raise concerns, said Norm Sandler, director of
global strategic issues at Motorola Inc., Schaumburg, Illinois, "we've gone
in to brief them that the science is reflected in current health and safety
guidelines around the world."
One telecommunications manager from a large corporate based in the
Netherlands said he is not perturbed by recent media coverage. "For years,
the police, fire and armed forces have used devices with far higher power
levels than GSM," and no clear evidence of any side effects has been found,
he said.
Yet just last week, the Metropolitan Police Service in London decided to
advise its officers to limit the length of cellphone conversations to five
minutes or, where this is not possible, to use a shielding cover or
ear-piece. The advice will only be given to individual officers who request
it, but the Service confirmed that it drew up the guidelines in response to
media reports and following consultation with the United Kingdom's National
Radiological Protection Board.
Whatever approach employers take, some legal experts believe claimants
anyway would have difficulty proving and funding their claims. Even if
medical research uncovered new evidence, causation factors will likely
remain circumstantial and subject to debate, they said.
Nonetheless, investors in cellphone manufacturers' stocks may take a more
cautious attitude. A report from Lehman Brothers, London, suggests that
investors may face "a period of uncertainty" each time new research revives
the health debate in the media.
But with mobile phones increasingly a part of everyday life, growth is
unlikely to slow for long. "Without a proven link with brain cancer in
particular, we would expect the impact to be temporary," said the report.
Manufacturers, however, are frustrated
that complex information from medical studies is not always clearly
explained.
"We're seeing the headlines before the substantive information," said
Motorola's Sandler. They are also concerned that WTR's summary was released
to the media before being fully presented to the wireless industry.
WTR's six-year research program was set up in 1993, backed by $25 million
from the industry through the U.S.
Cellular Telecommunications Industry Association (CTIA). The full study will
not be published until 19 June, and some commentators have questioned WTR's
timing in going public just as the organization is reaching the end of its
current funding.
Carlo said he only discussed the findings publicly after the report was
leaked to the Washington Post newspaper. He criticized the industry for
being content to fund medical research such as the World Health
Organization's study rather than allowing the WTR to follow up its findings,
which only became available earlier this year.
"The job of the WTR is to monitor and track research. With our program
ending, there is no-one in place to do that," said Carlo.
Leading mobile phone manufacturers Nokia Oyj of Helsinki and L.M. Ericsson
AB of Stockholm both said through spokespersons that they fund research in
order to share the cost of running large-scale studies into the effects of
mobile phone use.
A spokeswoman for Nokia said the company commits most of its funding to
independent research, in order to share the cost of running large-scale
studies. This includes all the major international programs, such as the WHO
study, she added.
Ericsson would not discuss either the scope or the results of its in-house
research, but said it also funds a number of independent studies.
Last month it decided to offer a hands-free kit for the first time, although
marketing will be focused on convenience and safety aspects while driving,
rather than potential health risks, a spokesman said.