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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-6.00 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.
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