Calling Up Cancer!

There are now millions of cell phone users around the world, and almost as many rumours about the potential health risks the phones might pose – and the potential for associated liability issues. In this article, we look at some key scientific and legal findings on the subject.

In May 2011, the World Health Organization’s International Agency for Research (IARC) announced that it had classified radiofrequency electromagnetic fields as “possibly carcinogenic to humans.” Given that there are estimated to be about 21 million cell phone users in Canada (and about 4.3 billion worldwide), some insurers are concerned about whether exposure to electromagnetic fields (EMF) emitted by cell phones might be the next asbestos-type liability to hit the industry. But the evidence so far remains uncertain.

IARC findings

National health agencies often use the conclusions of the WHO’s IARC as support for their actions to prevent or limit exposure to potential carcinogens, so the agency’s conclusions are significant. The IARC is a frequently quoted source on the possible connection between cell phone use and brain cancer risk, and it has issued various pronouncements on the topic. Two of the most prominent have been the Interphone Study and the Monograph Working Group’s assessment.

The Interphone Study

The Interphone Study was initiated in 2000 and reported on in May 2010. It was an interview-based, case-control study involving 13 international study centers, including one in Canada. The study focused on tumours in tissues that absorb radiofrequency energy emitted by cell phones. Its objective was to determine whether cell phone use increases the risk of brain tumours and tumours of the acoustic nerve and the parotid gland (the largest of the salivary glands).

The results of the study suggested that regular cell phone users are actually at less risk of developing brain tumours (glioma or meningioma). In discussing this result, commentators noted methodological limitations of the study, as well as the fact that participants were self-reporting. It should also be noted that, in this early study, “regular use” was defined as an average of at least one call per week for more than six months – a usage level that would be considered low today.

Perhaps the most widely shared conclusion drawn from the study was that there should be further investigation into the possible effects of long-term heavy use of cell phones.

The Monograph Working Group

On May 31, 2011, IARC’s Monograph Working Group announced that it was classifying radiofrequency electromagnetic fields associated with wireless phone use as “possibly carcinogenic to humans (Group 2B)” based on an increased risk for glioma, which is a malignant type of brain cancer.

On the surface, the announcement appears to contradict the conclusion of the Interphone Study. However, it’s important to understand the various categories into which carcinogenic agents are grouped by the IARC’s Working Group.

The scientific evidence linking a substance to cancer is seldom direct or indisputable, so the Monograph Working Group categorizes possible carcinogenic agents into four groups.

• Group 1: The agent is carcinogenic to humans. This category is generally used when there is sufficient evidence of carcinogenicity in humans.

• Group 2: This category is divided into two sub-groups.

• Group 2A: Agents that are probably carcinogenic to humans. This is used where, for example, there is limited evidence of carcinogenicity in humans and sufficient evidence of carcinogenicity in experimental animals.

• Group 2B: Agents that are possibly carcinogenic to humans. This is used when there is limited evidence of carcinogenicity in humans and less-than-sufficient evidence of carcinogenicity in experimental animals.

• Group 3: The agent is not classifiable as to its carcinogenicity to humans. This category is used most commonly for agents where the evidence of carcinogenicity is inadequate in humans and inadequate or limited in experimental animals.

• Group 4: The agent is probably not carcinogenic to humans. This category is for agents for which there is evidence suggesting lack of carcinogenicity in humans and in experimental animals.

So the categorization of the cell phone risk into Group 2B means the causal connection is still somewhat tenuous. For comparison, other items in the Group 2B category include coffee, extremely low-frequency electromagnetic fields (power lines) and talc-based body powder.

Based on the scientific evidence to date, it appears unclear at this point whether or not cell phone use causes cancer.

Cell phone lawsuits

Several legal cases in the United States have sought to hold cell phone manufacturers accountable for alleged health risks of cell phone use.

Newman v. Motorola (2002) was a product liability case in which the plaintiff claimed his use of a cell phone (manufactured by the defendant) had caused his brain cancer. The threshold issues were whether the use of a wireless phone can cause cancer (general causation) and whether the plaintiff’s use of his Motorola phone caused his cancer (specific causation).

Motorola moved to have the plaintiff’s expert evidence on the issue of causation excluded. The U.S. District Court for the District of Maryland granted the motion, concluding that the plaintiff’s expert evidence was not generally accepted in the scientific community as reflected in published scientific and governmental reports finding “no sufficient proof that use of handheld cellular phones causes human brain cancer.” The District Court’s decision was affirmed by the 4th Circuit Court of Appeal.

In Murray v. Motorola Inc. (2009), the plaintiffs claimed that cell phones the defendants manufactured or promoted were unsafe because they emitted a dangerous level of radiofrequency radiation, regardless of the fact the radiation emitted was within the limits set by the Federal Communications Commission (FCC). In other words, the plaintiffs claimed that even if the phones comply with FCC rules, they could still be deemed unreasonably dangerous under state law.

The D.C. Court of Appeals affirmed the Superior Court’s conclusion that the plaintiffs’ claims were barred under the doctrine of collateral pre-emption insofar as they applied to phones that were within FCC-set limits. However, claims relating to phones purchased before 1996 (when the FCC began issuing safety guidelines) were not pre-empted, nor were claims that defendants made affirmative misrepresentations or material omissions with respect to the manufactured phones’ EMF emission rates.

Farina v. Nokia, Inc. et al (2008) was a class action against numerous cell phone manufacturers and retailers in which the plaintiffs sought to require manufacturers to provide headsets with all cell phones. The U.S. District Court (affirmed by the 3rd Circuit) rejected the claim on the basis that it was pre-empted by FCC regulations. Farina has petitioned the U.S. Supreme Court for review of the case, arguing that he is seeking a remedy for the manufacturer’s misrepresentations about the safety of their phones, given that no one yet knows whether claims about safety of cell phones are true.

In the next issue of Claims Canada, Education Forum looks at insurance issues in cell phone cases.