Posted: November 8th, 2023
Critical Thinking and Writing Paper
Litigation of Mobile Phones as Carcinogens
There are over five billion mobile phone users worldwide. With the increasing use of wireless technology, concerns are arising concerning the carcinogenic potential of mobile phones. The portable devices emit electromagnetic fields (EMFs), which epidemiological studies associated with increased cancer risk. Therefore, a finding that mobile phones cause cancer would result in many claims against the mobile phone industry. This paper discusses the possibility of holding cell phone companies liable for brain cancer risk under tort law. The analysis looks at the science behind the claims and the status of existent cell phone litigation to make the determination. Existing scientific literature validates that electromagnetic radiation is a causal factor for cancer, but it is inconclusive whether the level of radiation emitted by cell phones is carcinogenic. While a lack of scientific evidence to prove causation enhances deniability over the carcinogenic properties of mobile phones, manufacturers can still be held liable for damages due to a failure to warn.
Cell Phones as Carcinogens
Scientists are yet to confirm how radiofrequency in mobile phones causes cancer. Choi et al. (2020) conducted a meta-analysis of forty-six case-controlled studies to find no statistically significant association. Unlike microwaves, gamma-rays and x-rays, the level of radiation from cell phones is much lower. Scientists cannot confirm whether exposure to such low radiation levels can harm the human body. In Newman v. Motorola Inc. (2002), the court ruled that the claimant had not presented reliable evidence to support specific or general causation (Wickham & Goodie, 2013). The uncertainty lies in the length of the latency period between exposure to electromagnetic waves and the start of brain cancer. To prove causality, science has to answer how long a person uses a cell phone before developing brain cancer. Currently, the extensive research conducted on the cancer effects of mobile phones remains largely inconclusive.
The success of a tort claim would be unlikely because existing literature is not only inconclusive but also conflicting. An Interphone Study in 2012 included 2000 participants from 13 countries to find no statistically significant correlation between mobile phones and brain cancer (Choi et al. 2020). However, the study did find an increased risk of gliomas with heavy cell phone consumption. On the other side of the spectrum, a 2011 Swedish research found no statistically significant likelihood of developing brain cancer in children and adults (Choi et al. 2020). Conflicting evidence is a big reason why tort claims would fail if made from a scientific angle. In Reynard v. NEC (1995), the claimants introduced the affidavits of two professional doctors, each with a different conclusion regarding the harmful effects of cell phone electromagnetic radiation (Wickham & Goodie, 2013). While the gap in science protects mobile phone companies from lawsuits, the duty of care will increase the demand for a class action.
The Duty of Care
Mobile phone companies have the legal obligation to warn consumers about the potential health risks associated with mobile phone use. MacAskill (2018) highlights that tech companies have long been aware of the health risks of phones but regularly fail to inform consumers. Companies such as Vodafone, Nokia and Blackberry have frequently warned investors that the firms might be facing legal action to scientific findings that cell phones cause cancer. For instance, in British Telecom’s 2017 annual report, the firm states that it cannot offer assurance that studies will not establish links between cancer and radiofrequency emissions (MacAskill, 2018). Mobile phones infringe on their duty of care by being selective with the truth. In Wireless Association vs. City of Berkeley (2015), the Ninth Circuit reinforces the duty to warn, stating adequate warning does not infringe companies’ First Amendment rights to free speech (Solis, 2020). Mobile phone companies can be held liable for failing to warn or under-warning.
Failure to warn puts cell phone manufacturers at risk of liability under the unconscionability doctrine. According to Uber Technologies Inc. v. Heller (2020), arbitration clauses in standard form are unconscionable and thus unenforceable when they prevent the weaker party from pursuing a claim against the stronger defendant (Weinstein, 2021). The doctrine looks at the question of equity in standard contracts. Mobile phone users enter into formal contracts with cell phone manufacturers when they purchase. However, established in the report is how phone companies fail to provide consumers with the necessary information on potential health risks. Under-warning puts the consumer at a legal disadvantage, resulting in unequal bargaining power. Unconscionability doctrine is another approach a claimant can employ to highlight the duty of care violation.
The doctrine of conflict pre-emption can be applied to impose stricter emission standards and highlight the negligence of mobile phone manufacturers and federal regulators. The Environment Protection and Biodiversity Conservation Act (1999) was a landmark Australian ruling that outlined that organizations have a novel duty of care to protect children from the risk of harm from climate change (Bellany, 2021). Novel duty is based on a reasonably foreseeable risk of injury or harm. Therefore, liability is determined based on whether a company took the necessary steps to reduce the perceived risk. In Environment Health Trust v. Federal Communications Commission (FCC), the defendant was found liable for failing to update its safety standards (Bellany, 2021). The institution had been negligent of its duty to carry out research and consider technical advisory for several years.
Medical science is yet to provide conclusive answers on the long-term health implications of cell phone use. A claimant’s burden to prove damages or injuries is almost impossible without a comprehensive causal link. However, recent scientific literature outlines an increased cancer risk with long exposure, which is sufficient to make cell phone companies liable for a duty of care. Claimants can pursue claims where organizations under-warn on potential effects or misinform. Failure to provide necessary information makes cell phone companies equally liable under the unconscionability doctrine. Given the inability to claim damages, this research provides crucial information on where legal action should focus, directly encouraging cell phone manufacturers to adopt stricter emission standards. Law should emphasize the duty of care, whereas science should focus on proving causality. In the absence of consistent evidence, mobile phone consumers should be wary of the many scholarly warnings regarding long exposure to radiofrequency.
Bellany, D. (2021, January 25). FCC faces sceptical appeals judges in radiation emissions case. Bloomberg Law, https://news.bloomberglaw.com/product-liability-and-toxics-law/fcc-faces-skeptical-appeals-judges-in-radiation-emissions-case
Choi, Y. J., Moskowitz, J. M., Myung, S. K., Lee, Y. R., & Hong, Y. C. (2020). Cellular phone use and risk of tumours: Systematic review and meta-analysis. International Journal of Environmental Research and Public Health, 17(21), 8079. https://doi.org/10.3390/ijerph17218079
MacAskill, G. (2018, June 2). Top mobile phone firms warning shareholders over devices’ possible cancer risks but fail to tell customers. The Mirror, https://www.mirror.co.uk/news/uk-news/top-mobile-phone-firms-warning-12637044
Solis, N. (2020, September 17). Federal judge rules against the city’s cell phone radiation warning law. Court House News Service, https://www.courthousenews.com/federal-judge-rules-against-citys-cellphone-radiation-warning-law/
Weinstein, T. (2021, May 11). Uber Technologies v. Heller. Harvard Law Review, https://harvardlawreview.org/2021/05/uber-technologies-inc-v-heller/
Wickham, G. & Goodie, J. (2013). Legal and political challenges of governing the environment and climate change. Routledge.
Question One: Host Liability
Social host liability continues to be controversial with the recent legalization of cannabis. Data shows that more Canadians are operating machinery a few hours after smoking marijuana, posing a significant risk to individual and public health. In May 2006, Canada’s Supreme Court ruled in Childs v Desormeaux, outlining social hosts’ accountability for intoxicated visitors’ damage and injury to third parties. The ruling incentivizes social hosts to engage in responsible conduct during social events. Anticipated is for hosts to take the necessary steps to reduce threats to public safety, such as offering food and monitoring servings. The ruling in Childs widens the scope of liability because hosts must now consider how the guest arrives home and how they behave or act afterwards. While society debates whether the duty of care for social hosts is contextual, there is a big possibility the law will continue reducing the situations under which the host can provide an intoxicant without liability, effectively implementing accident prevention.
Childs v Desormeaux answers whether the host is responsible for monitoring drug servings. According to court proceedings, the defendant designed a bring-your-own-bottle party (Malkin & Voon, 2007). Because of the event’s approach, the defendant argued that because he did not know what his guests were having, he was not liable for their level of intoxication. Desormeaux argued that he did not actively contribute to the risk of road injury. However, the Supreme Court held that the lack of knowledge placed more duty of care on the social host (Malkin & Voon, 2007). With the legalization of marijuana, people have the freedom to consume different strains of cannabis in their homes. The court would want to know if the social host took notice of the different strains of cannabis and took the necessary steps to reduce the chances of intoxication. Monitoring servings allow social hosts to control consumption, actively showing responsibility for guests’ safety and conduct.
The Supreme Court’s decision effectively balances free choice by anticipating human behaviour. Mikos (2017) appreciates how the ruling covers the issue of ‘absence of evidence’ in social host liability. One of the defendant’s arguments was that he did not know that Desormeaux was intoxicated. Judge Chadwick did find that there was no evidence showing the host had this knowledge. However, the judge was satisfied with all the other evidence that highlighted people at the party were getting impaired (Mikos, 2017). The rational conclusion is that social hosts must anticipate signs of impairment instead of observing them. With the legalization of cannabis, the drug is equally added to the social host ordinance. Failure to anticipate behavioural changes due to guests becoming high implicates the social host in creating or enhancing risk. The question of obvious, visible signs is also answered when put into context. However, it will be difficult to trace differences in CBD and THC levels, making it even more complicated to anticipate personal effects.
On the facts of Childs, an increased risk of liability occurs when the host is aware of a reveller’s consumption habits. When Judge Chadwick determined there was no sufficient evidence to show the host was aware of Desormeaux’s impairment, the next consideration was whether the defendant had a drinking history (Malkin & Voon, 2007). The social host and the defendant were not mere acquaintances because they had lived together severally. The judge contemplated the significance of the host’s knowledge of the defendant’s drinking habits and behaviour. The finding was that the host was also aware of Desormeaux’s tendency to drive while intoxicated (Malkin & Voon, 2007). The law contemplates human behaviour to negate the assertion that hosts cannot be expected to know how much a guest is intoxicated. Research outlines that acute cannabis consumption correlates with motor vehicle collision risk (Asbridge, 2012). The behavioural aspects incentivize hosts to verify the people attending the gatherings. The approach makes attendees less likely to engage in unsafe behaviours because the party comprises mostly seasoned users.
Laws covering social host liability require further reforms to include more conditions that increase the risk of liability under the duty of care. McKernan (2017) laments that existing liability provisions exclude some exceptional situations that increase youth safety risk. Foremost, following the recent legalization of marijuana, foreseeability is a concern. Weed smokers employ different consumption methods, making the determination of onset and extent of effects problematic (McKernan, 2017). Secondly, cannabis strains are different, making it difficult to track the percentage of cannabis. The gap outlines the inability to determine the extent of impairment resulting from marijuana consumption. Lastly, science is yet to confirm cannabis-induced states that can result in harm to users and others (McKernan, 2017). The three gaps are a foreshadow of possible claims in cannabis private parties.
Whether a duty of care exists for social hosts to their guests and third parties remains a contextual determination. Currently, the host’s responsibility does not extend beyond the guest arriving home safely. Recent developments highlight case law will include additional circumstances that increase the social host’s liability. For instance, similar to alcohol, foreseeability of smoking habits and dangerous behaviour while intoxicated will impost a duty of care until the subject becomes sober. The legalization of cannabis is recent, and its different consumption methods and chemical compositions will make it hard for legislators and insurance providers. A cloud of uncertainty looms over what constitutes an effective risk assessment, but the facts in Childs provide a tested and effective framework to build on. Only time can reveal the type of tort law the Canadian courts will implement for cannabis providers.
Asbridge, M. (2012). Acute cannabis consumption and motor vehicle collision risk: Systematic review of observation studies and meta-analysis. BMJ Journal, 344. https://doi.org/10.1136/bmj.e536
Haines-Saah, R. J., & Fischer, B. (2021). Youth cannabis use and legalization in Canada – reconsidering the fears, myths and facts three years in. Journal of the Canadian Academy of Child and Adolescent Psychiatry, 30(3), 191–196.
Malkin, I. & Voon, T. (2007). Social hosts’ responsibility for their intoxicated guests: Where courts fear to tread. Social Science Research Network, 265, 1-27.
Mikos, R. (2017). Marijuana law, policy and authority. Aspen Publishing.
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