George Pitcher: Smart move to protect the brain from damage

I bought one of those hands-free earpieces for my daughter’s mobile phone the other day, given that she was spending hours on the Nokia she was given for her 15th birthday and, like most parents, I’m aware that there are concerns about the long-term effects of radiation on the brain, especially among children.

A telecoms analyst told me that he had once seen the president of Panasonic carefully place his thumb between his handset and his ear – and if someone like him is taking precautions, then I suggest that we who have less research at our disposal should follow his example.

So, I’m not about to be startled by news that the world’s largest mobile phone manufacturers have been patenting devices that will reduce the risks – if they exist – of brain tumours among their customers. It strikes me as not in the least inconsistent that these companies are concurrently rejecting claims that such health hazards exist.

The key to the rationale of the dominant handset makers – Nokia, Ericsson and Motorola – is to be found in an application by Nokia to the United States Patent Office which states that “it has been suggested that” continual exposure to radio-frequency radiation could lead “to development of a malignant tumour”.

The tone is speculative and conditional. What Nokia and the others are acknowledging is that the jury is out on the health hazards of mobile phones. In the absence of any scientific proof of a link between handsets and brain tumours, it is perfectly respectable for the most popular consumer item of the century to be marketed in its current format. It is also perfectly respectable to plan contingencies for such a link being scientifically proven.

If you’re one of those who believe that this rationale doesn’t stand up, consider the alternative. These companies would do nothing to develop anti-cancer shields (presumably saving themselves considerable sums of money in the process), a scientific link may subsequently be established and the likes of Nokia would be taken to the cleaners by lawyers representing those ill with or dying of brain tumours caused by mobile phones.

Brutally, that could adversely affect the finances of mobile manufacturers for years and unduly delay important technological developments for those of us unaffected by illness, either through good fortune or through prudent early purchase of those little earpieces. But it is a symptom of the prevalent compensation culture that these patent applications have been seized upon by US lawyers as evidence not of responsible contingency planning, but of a cynical desire to be reassuring in public and apprehensive in private.

In other words, it is claimed that Nokia and its rivals implicitly accept that there is a health risk. The patents are now to be used in evidence in a series of US lawsuits launched this year against telecoms companies, including the UK market leader, Vodafone. It looks as though it might have been safer for mobile phone makers to have sat on their hands – or on their hands-free sets.

A man dying of lung cancer in the US has been awarded some &£2bn in compensation in a successful punitive action brought against Philip Morris, whose Marlboro cigarettes the man puffed for about 30 years since the age of 13. The award is remarkable not just for its size, indicating a developing enthusiasm on the part of juries to demonise the tobacco manufacturers, but also for the fact that Philip Morris broke with precedent and didn’t try to defend the action so much as mitigate its actions.

That, I believe, was its undoing, for it focuses public attention and the demand for justice on what and when the tobacco companies knew about smoking’s links with cancer. It is also what puts tobacco manufacturers such as Philip Morris at the opposite end of a scale of moral and legal culpability to mobile phone manufacturers such as Nokia.

There can be no doubt that juries in tobacco class actions are strongly influenced by the work of investigators such as the World Health Organisation, which has uncovered evidence that tobacco companies did not respond to European Union directives of 1990 to limit tar and nicotine content, so much as change the methodology for measuring such cancer-causing agents to their advantage. They could do this, it is alleged, because the tobacco companies effectively control the International Organisation for Standardisation (ISO), which sets such measurement tests.

This kind of cynical attempt to market provenly damaging products in the hope of escaping liability for fatal disease caused subsequently is the exact opposite of prospectively working to safeguard one’s products and the people who use them, in the event of them being proven damaging subsequently.

But if the legislatures of the UK and the US are going to regard both strategies similarly, by treating prudence as evidence of guilt, then there really is very little incentive for companies to behave as the mobile manufacturers are doing, or any better than the tobacco companies have done.

It would be good if governments across the Atlantic indicated they would work with telecoms companies on their sensible research, while the lawyers are left to work against the tobacco companies. The trouble is, too many politicians are lawyers and too much government revenue is generated by tobacco for there to be much hope of that happening.

George Pitcher is a partner of issue management consultancy Luther Pendragon