MAHA BRIEFING MEMO

To: The Secretary of Health and Human Services; Counsel to the President
From: Policy & Legal (Rapid Response)
Date: September 21, 2025
Re: The Secretary’s obligations under Public Law 90‑602 and a legally durable plan to modernize U.S. RF exposure protections after EHT v. FCC (D.C. Cir. 2021)

Congress already gave HHS a standing mandate to run a federal electronic‑radiation protection program and, when needed, to issue performance standards to protect public health—covering non‑ionizing RF from consumer electronics. The key verbs are “shall plan, conduct, coordinate, and support research … [and] shall … prescribe performance standards … when necessary to protect the public health and safety.” That authority sits in the FD&C Act’s Electronic Product Radiation Control provisions (21 U.S.C. §§ 360ii, 360kk). It does not repeal other agencies’ powers, but it does mean the Secretary is the health standard‑setter for radiation‑emitting products where health protection requires it. The D.C. Circuit’s 2021 remand of the FCC’s 1996 RF limits for failure to address non‑cancer and child‑vulnerability evidence heightens the need for HHS to act now—to rebuild the science record (including a restarted NTP program) and to propose HHS performance standards that the FCC can then incorporate. Legal Information Institute+2Legal Information Institute+2

The Secretary’s legal authorities and duties (what the statute actually says)

Program of control (21 U.S.C. § 360ii). “The Secretary shall establish and carry out an electronic product radiation control program … As part of such program, he shall: (2) plan, conduct, coordinate, and support research … to minimize emissions and exposure; (1) develop and administer performance standards for electronic products pursuant to § 360kk; and (3) maintain liaison with other federal and state entities.” This is a continuing federal health function, not a one‑off. Legal Information Institute
Performance standards (21 U.S.C. § 360kk). “The Secretary shall by regulation prescribe performance standards … if he determines such standards are necessary for the protection of the public health and safety.” FDA has long used this power for lasers and microwave ovens (e.g., 21 C.F.R. § 1030.10). The same chapter’s definitions confirm coverage of non‑ionizing RF. Legal Information Institute+2Legal Information Institute+2
Non‑interference note. Public Law 90‑602 carries a savings clause: nothing in it “shall be construed to supersede or limit” other agencies’ functions. Translation: HHS cannot strip FCC or NTIA of their authorities by regulation; coordination is required. But the note does not subtract HHS’s own standard‑setting or research duties. Legal Information Institute

Implication: HHS has ample, existing authority to (i) restart and expand RF health research and (ii) propose health‑protective performance standards for RF‑emitting consumer electronics (e.g., phones, tablets, wearables, routers), with appropriate consultation—while the FCC continues to administer spectrum and device authorizations and can incorporate HHS standards into its compliance regime. Legal Information Institute

The procedural posture: EHT v. FCC (D.C. Cir. 2021) and the stalled record

In 2021, the D.C. Circuit held that the FCC’s decision to retain its 1996 RF exposure limits was “arbitrary and capricious,” chiefly for failing to explain how the limits account for non‑cancer harms and children’s vulnerabilities. The court remanded for a reasoned explanation. The FCC had said it would rely on FDA/HHS; the court found that reliance cursory. Bottom line: even though the remand is directed to the FCC, the health science it must evaluate necessarily comes from HHS. The fastest lawful way to cure the record is for HHS to re‑constitute the science and, where warranted, to promulgate HHS performance standards that the FCC then references. Justia Law

Compounding concern: The NTP RF program—which found clear evidence of malignant schwannomas of the heart and some evidence for brain gliomas in male rats—was halted in 2024–2025, with NIEHS materials indicating no additional RFR studies are planned. That cessation is hard to reconcile with § 360ii’s “shall … support research” mandate and leaves the federal record stagnant. Immediate restart is recommended. NIEHS+1

The science since 2021 (what has to be reflected in the record)

Cancer (animals; WHO‑commissioned SR, 2025). The WHO‑commissioned systematic review led by Mevissen et al. (Environment International, Apr 2025) concluded that RF‑EMF exposure increases cancer incidence in laboratory animals, with highest certainty for cardiac schwannomas and gliomas—tumor types that mirror the NTP and Ramazzini findings and the human case literature. National radiation authorities summarizing the review likewise report “high certainty” for those endpoints. This is a major shift in weight‑of‑evidence relative to 2011/2016 assessments. PubMed+1
Male fertility (WHO‑commissioned SR + 2025 corrigendum). The WHO‑commissioned review (2024) and its 2025 corrigendum updated the conclusion from “possible detrimental effect” to “detrimental effect” on male fertility outcomes, with upgraded certainty. That change materially affects risk assessment and policy. PubMed+1
Pregnancy/child outcomes (human observational; 2025 cohort). A BMC Pregnancy & Childbirth (2025) cohort of 1,666 pregnant women in Iran associated higher cell/cordless phone use with increased risks in miscarriage and abnormal birth weight/height (while noting study limitations and the need for better exposure assessment). This strengthens the argument for precaution in pregnancy pending stronger U.S. research. BioMed Central

Takeaway for Counsel: These WHO‑commissioned updates + NTP findings are precisely the kinds of new evidence the D.C. Circuit faulted the FCC for ignoring. HHS is the right locus to curate and translate this science into federal standards. Justia Law

Constraints you must respect (and how to work within them)

You cannot “strip” FCC authority by EO. FCC is an independent agency under the Communications Act. However, recent EOs (2025) and an OLC opinion (2019) support extending centralized review and coordination to independent agencies. Use that to require consultation and OIRA review of any FCC action that touches RF health, while HHS proceeds under its own authority. Department of Justice+1
Section 704 preemption (47 U.S.C. § 332(c)(7)(B)(iv)). Localities may not regulate wireless facility siting “on the basis of the environmental effects of RF emissions” if FCC limits are met. Changing that requires Congress. Short of repeal, Congress can condition preemption on compliance with HHS standards or allow HHS‑vetted local health mitigation. Legal Information Institute

Action plan (90–180 days)

A. Executive Order (drafting instructions)
Purpose clause: Recognize EHT v. FCC remand; recognize HHS’s statutory duties (21 U.S.C. §§ 360ii, 360kk); acknowledge WHO‑commissioned 2024–2025 reviews and NTP findings.
Directives:

Re‑start the NTP RF program (NIEHS‑NTP) within 90 days; publish a five‑year plan for priority endpoints (carcinogenicity; male fertility; developmental/pregnancy; neurobehavioral), realistic modern waveforms/duty cycles, and co‑exposures; deliver annual public reports. (Authority: § 360ii.) NIEHS
HHS rulemaking (CDRH/FDA) to propose RF performance standards for consumer electronic products (e.g., labeling, exposure metrics across modulation/pulse structures, test methods, duty‑cycle weighting, pregnancy/child default factors, SAR/absorption safety margins). NPRM within 180 days. (Authority: § 360kk.) Legal Information Institute
Interagency coordination. Re‑establish a Radiofrequency Interagency Working Group co‑chaired by HHS and EPA, with FCC, NTIA, OSHA, DoD, NIST. FCC to consult and, to the maximum extent permitted by law, incorporate HHS standards in device authorization and siting compliance. OIRA reviews any related significant rules—including by independent agencies—per 2025 EO and OLC guidance. Department of Justice+1
Public transparency. Direct HHS to publish an RF Risk Summary for clinicians, schools, and parents, reflecting WHO‑commissioned reviews and NTP findings, and to issue interim pregnancy/child exposure precautions pending final rules. PubMed

B. HHS regulatory track (what to propose)

Scope: “Wireless consumer electronic products” that emit RF‑EMF in ordinary use.
Core elements: health‑protective points of departure; child/pregnancy adjustment factors; time‑averaging that doesn’t wash out pulsed/modulated peaks; harmonized test protocols reflecting real‑world duty cycles; warning/usage instructions for proximity to abdomen/pelvis; reporting and post‑market surveillance. Precedent: microwave oven and laser standards under Subchapter J. Legal Information Institute

C. Legislative asks (to pair with EO)

Targeted amendment to § 332(c)(7)(B)(iv) (TCA § 704): preserve federal uniformity but allow States/localities to consider HHS‑promulgated standards and mitigation in siting without losing preemption, or condition preemption on demonstrated compliance with HHS standards. Legal Information Institute
Appropriations line‑item to fund the NTP RF program and interagency test facility upgrades. Microwave News

7) Why this path is defensible

Statute‑first. HHS acts squarely within existing mandates: research (§ 360ii) and performance standards (§ 360kk). The EO coordinates; it doesn’t displace the FCC. Legal Information Institute+1
Record‑cure. The plan supplies the robust health record the D.C. Circuit said is missing (non‑cancer effects; children). It gives the FCC something authoritative to incorporate on remand. Justia Law
Evidence‑based. It explicitly integrates WHO‑commissioned 2024–2025 reviews and NTP findings (and remedies the NTP shutdown by restarting it). PubMed+2ScienceDirect+2

Immediate next steps

Day 0–7: Issue internal HHS directive to restart NTP RF planning; convene CDRH–NIEHS–NIH scoping group; draft EO text and OIRA review memo. NIEHS
Day 30: Publish Request for Information (RFI) on RF performance standards (test methods; modulation; pregnancy/child factors).
Day 90: Release NTP RF Program Plan; form RF Interagency Working Group.
Day 180: Publish HHS NPRM proposing RF performance standards; deliver MAHA Strategy addendum aligning with WHO/NTP evidence (the May 2025 MAHA Assessment listed EMR as a topic but did not develop the scientific basis). The White House

Appendix: Key legal and scientific references (for Counsel)

Statute: 21 U.S.C. § 360ii (program of control; “shall … plan, conduct, coordinate, and support research”); § 360kk (Secretary “shall … prescribe performance standards … when necessary to protect public health and safety”); § 360hh (definitions include non‑ionizing EM radiation). Legal Information Institute+2Legal Information Institute+2
Savings clause: Non‑interference with other federal agencies (note to § 360hh/§ 360ss). Legal Information Institute
Preemption: 47 U.S.C. § 332(c)(7)(B)(iv) (TCA § 704). Legal Information Institute
Court remand: Environmental Health Trust v. FCC, 9 F.4th 893 (D.C. Cir. 2021). Justia Law
NTP findings & status: NIEHS/NTP fact sheet (clear/some evidence; no further RFR studies planned); Microwave News overview of program halt. NIEHS+1
WHO‑commissioned reviews: Cancer in animals (Mevissen 2025; high‑certainty for cardiac schwannomas & gliomas); Male fertility (Cordelli 2024 + 2025 corrigendum changing “possible detrimental effect” to “detrimental effect”). PubMed+2PubMed+2
FDA precedent for federal performance standards: 21 C.F.R. § 1030.10 (microwave ovens). Legal Information Institute
EO coordination authority: OLC (2019) on applying EO 12866 review to independent agencies; 2025 WH action on ensuring accountability for all agencies. Department of Justice+1

Final note

Nothing in this plan claims power HHS doesn’t have. It uses the powers Congress already gave the Secretary—research and performance standards—to (1) cure the scientific record, (2) protect children and pregnancies now, and (3) give the FCC and courts the reasoned, health‑based basis they asked for in 2021. That’s the fastest, most legally durable way forward.

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