BILL ANALYSIS AB 2798 Page 1 Date of Hearing: May 4, 2004 ASSEMBLY COMMITTEE ON HEALTH Rebecca Cohn, Chair AB 2798 (Leslie) - As Amended: April 28, 2004 SUBJECT : Adult entertainment: adult film production companies: sexually transmitted disease prevention. SUMMARY : Requires that performers be tested for the presence of sexually transmitted diseases (STDs) before production begins on a film containing sexual content, as defined. Specifically, this bill : 1)Specifies that it is the intent of the Legislature to obstruct the spread of STDs in the general population by taking steps to ensure the health and safety of those whose job it is to perform sexual acts with other individuals for public entertainment through visual media and that a person who is in violation may be subject to penalties pursuant to the bill in addition to any other penalties that may apply for violation of existing laws related to sexual conduct. 2)Requires a production company to require its performers to be tested for the presence of STDs, including, but not be limited to, chlamydia, chancroid, gonorrhea, hepatitis A, B, and C, herpes simplex virus (HSV), human immunodeficiency virus (HIV), human papilloma virus (HPV), and syphilis. 3)Requires that the test be current, as specified, and that it detect infection at a two-week incubation, if available. 4)Requires that the test be paid for by the production company and performed by health care providers who do not have any other financial or personal relationship with the business or performers. 5)Specifies that an adult film production company that fails to comply is liable in a civil action for any damages to any performer who is infected with a STD by reason of that failure. 6)Prohibits an adult film production company that has been notified by a performer, or that receives test results indicating, that the performer has, or has had, any STD, from AB 2798 Page 2 allowing the performer to perform in any production, unless the performer submits documentation from a physician that certifies that the performer is free from any STD. 7)Prohibits a performer or adult film production company from falsifying a STD test obtained for purposes of the bill and specifies that any performer who is infected with a STD as a result of a falsified test may file a civil action against both the performer and the adult film production company. 8)Permits an adult film production company to seek recovery from the performer who falsified the test for damages paid as a result of a judgment. 9)Permits any performer who is infected with an STD by reason of a falsified test by an adult film production company to file a civil action against the adult film production company. 10)Specifies that the provisions of the bill are severable and if any provision or its application is held invalid, that invalidity does not affect other provisions or applications. EXISTING LAW 1)Requires the Department of Health Services (DHS) to develop and review plans and provide leadership and consultation for, and participate in, a program for the prevention and control of STDs, as specified. 2)Requires DHS to cooperate in the prevention, control, and cure of STDs with physicians and surgeons; medical schools; public and private hospitals, dispensaries, and clinics; public and private school, college and university authorities; penal and charitable institutions; reform and industrial schools; detention homes; federal, state, local and district health officers, and boards of health, and all other health authorities; institutions caring for the mentally ill; and with any other persons, institutions, or agencies. 3)Specifies that it is the duty of the local health officers to use every available means to ascertain the existence of cases of STDs within their respective jurisdictions, to investigate all cases that are not, or probably are not, subject to proper control measures approved by the county Board of Supervisors, to ascertain so far as possible all sources of infection, and AB 2798 Page 3 to take all measures reasonably necessary to prevent the transmission of infection. 4)Permits a person employed by a public health department to perform venipuncture or skin puncture for the purpose of withdrawing blood for test purposes, upon specific authorization from a licensed physician and surgeon, even though he or she is not otherwise licensed to withdraw blood; provided that the person meets all of the following requirements: a) He or she works under the direction of a licensed physician and surgeon; and, b) He or she has been trained by a licensed physician and surgeon or by a licensed clinical laboratory scientist or bioanalyst in the proper procedures to be employed when withdrawing blood, in accordance with training requirements established by the department, and has a statement signed by the instructing physician and surgeon that the training has been successfully completed. 5)Requires a physician, hospital, or other health care provider to report all AIDS cases, HIV infections, and specified STD infections to the local health officer within timeframes established by DHS. Upon receipt of a report concerning any infection cases, requires the local health officer to report this fact to DHS. 6)Provides for civil liability in cases of fraud and deceit, as defined. Specifically, states that actual fraud exists in specified acts, committed by a party to the contract, or with his connivance, with intent to deceive another party, or to induce him to enter into the contract. Specifies that a person who willfully deceives another with intent to induce him to alter his position to his injury or risk, is liable for any damage which he thereby suffers. A deceit includes the suggestion, as a fact, of that which is not true, by one who does not believe it to be true; the assertion, as a fact, of that which is not true, by one who has no reasonable ground for believing it to be true; the suppression of a fact, by one who is bound to disclose it, or who gives information of other facts which are likely to mislead for want of communication of that fact; or, a promise, made without any intention of performing it. AB 2798 Page 4 7)States that any person who exposes another to HIV by engaging in unprotected sexual activity is guilty of a felony, when the infected person: 1) knows he or she is infected; 2) has not disclosed his or her HIV-positive status; and 3) acts with the intent to infect the other person with HIV. FISCAL EFFECT : Unknown COMMENTS : 1)PURPOSE OF THIS BILL . According to the author, this bill will protect the health of adult motion picture performers and the general public by requiring adult entertainment businesses to ensure that before the start of a production, each performer is tested for STDs. If performers test positive for STDs, and they or the producer or production company falsifies the tests, they are civilly liable. 2)BACKGROUND . In a recent, highly publicized case of HIV exposure in the adult film industry, over 50 men and women voluntarily quarantined themselves because they may have been exposed to HIV through their work. This prompted about 80% of the industry to halt production until further testing of actors was completed. In this case, a male performer is believed to have been infected while shooting in Brazil infected three women upon his return to filming in the United States despite having tested negative for HIV. He subsequently tested positive, which prompted the quarantine and halt in production. According to an April 23, 2004 article in the Los Angeles Times, some of the largest production companies "?declined to take part in the moratorium, arguing that they already have safety measures in place. Vivid Entertainment Group of Van Nuys said it requires condom use and negative HIV tests within 30 days of the start of production." According to that same article, the most recent episode of this nature occurred in 1999, when a male actor tested positive for HIV. He no longer performs and infected no other performers. In 1998, a different male actor infected five women through sexual contact. 3)WORKGROUP ON SAFETY AND HEALTH IN THE ADULT FILM INDUSTRY . For the past year, representatives from CalOSHA (Occupational Safety and Health Administration), DHS, California Department of Industrial Relations, Los Angeles Department of Health AB 2798 Page 5 Services, Los Angeles Office of the County Counsel, and Los Angeles Department on Disability have been working on a "Injury and Illness Prevention Model Program for Employers in the Adult Film Industry" (IIP). The IIP includes a detailed schedule for the testing of specific disease based on a variety of factors, including incubation periods and treatment or vaccine availability. Under the IIP, testing would be required for performers prior to engaging in work involving any known direct sexual contact in the adult film industry for the first time, and then on a regular basis according to a hazard-specific schedule. The IIP specifies that workers with no prior industry experience should have two negative HIV-tests taken 30 to 60 days apart before they are employed to engage in direct sexual contact. 4)POLICY CONCERNS . a) Detecting and Transmitting HIV : An exposure to HIV in a person who is tested every day thereafter with the most sensitive test (called a PCR-DNA test) does not test positive until the 15th day in most cases. The point at which a person has a positive result depends on a number of factors, including the individual's immune response and how high a person's viral load is. In order to address the concerns that the author has expressed in relation to HIV infection, the bill should require performers to be tested on a regular schedule. b) Civil and Criminal Liability : It appears that there may already be civil liability against a person who infects someone else with HIV, thus making provisions in the bill related to civil liability unnecessary. For example, depending on the scenario, the person infected could make a case for misrepresentation, deceit, or fraud. Additionally, a case might be made for battery or negligent infliction of emotional distress. Current law also provides for criminal penalties in cases where a person afflicted with any contagious, infectious, or communicable disease willfully exposes himself or herself to another person. Criminal penalties also apply in the case where a person exposes another to HIV by engaging in unprotected sexual activity when the infected person knows at the time of the unprotected sex that he or she is infected with HIV, AB 2798 Page 6 has not disclosed his or her HIV-positive status, and acts with the specific intent to infect the other person with HIV. c) STD Incubation and Testing : The bill requires that the STD test detect infection at a two-week incubation period or less, if available, and defines an "incubation period" as the time between when a person is infected and when the test can be expected to identify the infection. There are numerous tests to detect STDs, some more sensitive than others, which use a variety of methods of detection. In addition, incubation periods differ. For example, syphilis is spread by direct skin to skin contact and after the incubation period, a lesion appears in the place where the contact occurred. The incubation period for syphilis is between ten and 90 days, but on average a person tests positive 21 days after contact. The most sensitive test in the primary stage of the disease (where a lesion is present and which could occur up to 90 days after exposure) is only 85% sensitive in making the diagnosis, meaning there can be false negative results. Therefore, it is problematic to put into statute one general guideline for a number of diseases that have different incubation periods and testing and treatment methods. d) Mandatory Reporting : The bill specifies that results are confidential, however, under current law, STDs (all those specified under the bill except herpes and HPV) are reportable (including the infected individual's name) to the local health department. HIV is also reportable, but those reports do not include the name of the infected individual. Under the current law, laboratories and health care providers must report to local health department and the local health department must report to DHS. e) Health Care Provider : The bill requires that the test be performed by a "health care provider," but does not provide a definition. For the purposes of testing for HIV, current law defines who can administer a test. Current law also specifies professionals that may administer tests for other STDs, as specified. f) Workgroup Report : As previously stated, the Los Angeles Department of Health Services has been working with other county and state departments over the past year to develop AB 2798 Page 7 guidelines for health and safety of workers in the adult film industry. The draft document developed by this workgroup includes a detailed plan for testing and treatment, including a schedule according to each disease type. Should the author wait to introduce legislation that mandates testing until this report is released in order to include a more comprehensive and effective approach in controlling the spread of STDs? g) Use of condoms : It is commonly viewed by those in the health care field that the best means for preventing the spread of STDs is through abstinence or the use of condoms. In order to meet the intent stated, the author may wish to amend the bill to require the use of condoms industry-wide rather than mandate testing. 5)OPPOSE . The AIDS Healthcare Foundation is opposed to any provision of law that seeks to make HIV testing mandatory and are particularly concerned that this bill does not recognize the reality of HIV testing. The American Civil Liberties Union opposes mandatory testing of individuals for HIV status based on its infringement of individual liberty and right to privacy and states that mandatory STD testing gives a false sense of security because someone may have been infected since the last time he or she was tested and may be infectious before being tested again. The Free Speech Coalition indicates that the current testing program has shown success, with no HIV positive results in five years until the recent discovery of current positives. They believe that this bill reflects a misunderstanding of several critical issues related to the STDs specified in the bill and a lack of knowledge or current and more efficient practices already in use within the industry. 6)OPPOSE UNLESS AMENDED . The Motion Picture Association of America states that the bill creates liability for their member companies for any lack of compliance with its provisions. Although they do not make adult films, the language in the bill is so broad as to include their films, and they request that the bill be amended to provide for a more narrow definition of adult films. REGISTERED SUPPORT / OPPOSITION : Support AB 2798 Page 8 None on file. Opposition AIDS Healthcare Foundation American Civil Liberties Union Free Speech Coalition Analysis Prepared by : Melanie Moreno / HEALTH / (916) 319-2097