BILL ANALYSIS                                                                                                                                                                                                    



                                                                  AB 2798
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          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  








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            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  








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            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. 








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          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  








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            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,  








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               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  








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               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 








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          None on file.

           Opposition 
           
          AIDS Healthcare Foundation
          American Civil Liberties Union
          Free Speech Coalition
           
          Analysis Prepared by :    Melanie Moreno / HEALTH / (916)  
          319-2097