BILL ANALYSIS
SENATE HEALTH
COMMITTEE ANALYSIS
Senator Elaine K. Alquist, Chair
BILL NO: AB 223
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AUTHOR: Ma
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AMENDED: May 17, 2010
HEARING DATE: June 9, 2010
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CONSULTANT:
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Tadeo
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SUBJECT
Safe Body Art Act
SUMMARY
Enacts the Safe Body Art Act, providing minimum statewide
standards for the regulation of persons engaged in the
business of tattooing, body piercing, and the application
of permanent cosmetics. Repeals current provisions
regarding these businesses. Provides statewide
requirements for the performance of ear piercing with a
mechanical device.
CHANGES TO EXISTING LAW
Existing law:
Requires the California Conference of Local Health Officers
to establish sterilization, sanitation, and safety
standards for persons engaged in the business of tattooing,
body piercing, or permanent cosmetics.
Requires the Department of Public Health (DPH) to provide
the necessary resources to support the development of these
standards and requires the standards to be directed at
establishing and maintaining sterile conditions and safe
disposal of instruments.
Continued---
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Allows the standards to be modified as appropriate to
protect consumers from transmission of contagious diseases
through cross-contamination of instruments and supplies, as
specified.
Requires the standards to be submitted to DPH for review
and consultation by July 1, 1998, and directs DPH to
distribute those standards in written form to all county
health departments within 30 days after they are adopted by
DPH.
Requires a practitioner of tattooing, body piercing or
permanent cosmetics to register with the county in which
the business is conducted, obtain the sterilization,
sanitation, and safety standards distributed by DPH, as
specified, and pay a one-time registration fee of $25.
Allows the county to charge an additional fee, if
necessary, to cover the cost of registration and
inspection, and allows a county to adopt regulations that
do not conflict with, or are more comprehensive than,
standards adopted by DPH.
Makes a person liable for a civil penalty for the failure
to register, or for a violation of the sterilization,
sanitation and safety standards.
Makes it a misdemeanor to tattoo, or offer to tattoo, a
person under the age of 18 years, and an infraction for any
person to offer or perform body piercing upon a person
under the age of 18 years, unless the body piercing is
performed in the presence of, or as directed by, a
notarized writing by the person's parent or guardian or
unless the person is an emancipated minor.
This bill:
Repeals current provisions governing the development of
standards for the body art industry.
Establishes the Safe Body Art Act to provide minimum
statewide standards for the regulation of tattooing, body
piercing, and permanent cosmetic application, and defines
each practice, as specified. Ear piercing conducted using
a mechanical device is excluded from the body piercing
definition.
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Establishes restrictions on the performance of body art.
Requires parental or guardian presence for body piercing,
and allows a body art facility to refuse to perform body
piercing, regardless of parental or guardian consent.
Prohibits minors from being offered or receiving a tattoo,
permanent cosmetics application, genital piercing or
branding, regardless of parental consent. Allows for the
application of permanent cosmetics to the nipples of a
minor when it is directed by a physician and with the
consent of a parent or guardian.
Requires a client of a body art facility to read, complete
and sign an informed consent form and questionnaire that
includes medical history related to the body art procedure,
including, but not limited to, the possibility that the
client may be pregnant, have a history of herpes infection
at the proposed procedure site, diabetes, allergic
reactions to latex, hemophilia, cardiac valve disease, have
a history of medication use and current medications.
Requires this information to be treated in a manner that
complies with all applicable state and federal laws, and
requires any confidential medical information to be
shredded after two years.
Establishes practitioner registration and health safety
training procedures. Requires the registration of
practitioners with the local enforcement agency. Allows
the local enforcement agency to set the fee at an amount
sufficient to cover the actual costs of administering the
program.
Requires an owner of a body art facility to provide, and a
practitioner to have, training in the reduction of
bloodborne pathogen exposure and procedures to follow
should such an exposure occur. Establishes procedures for
cleaning, sterilizing, safety and hygiene, and additional
procedures and requirements, as specified.
Specifies what types of inks, dyes and pigments shall be
used and the procedure in which they are applied.
Establishes procedures for the use of needles, needle bars,
grommets and razors, and the proper disposal of each.
Requires permanent and temporary body art facilities to
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obtain a health permit. Requires facilities at which body
art is practiced to be safe, sanitary and be registered
with the local enforcement agency. Establishes
requirements that must be met to qualify for a body art
facility permit. Allows the local enforcement agency to
set the fee at an amount sufficient to cover the actual
costs of administering the program.
Establishes procedures, techniques and training required to
ensure safe body art practices, including an Infection
Prevention and Control Plan, body art facility procedure
area requirements and practices, decontamination and
sanitation area requirements and practices, sterilization
procedures and practices, and other requirements as
specified.
Establishes enforcement and non-compliance procedures,
including enforcement, inspections, citations, suspensions
and revocations of, practitioner and business permits, as
specified. Establishes penalties for violations.
Establishes the local enforcement agency as the local
health agency of the city, county, city, or city and
county. In jurisdictions where the local health agency and
the environmental health agency are separate departments,
the jurisdiction is required to specify which entity will
be the local enforcement agency.
Allows a city, county, or city and county to adopt
regulations and ordinances that do not conflict with, or
are more stringent than, the Safe Body Art Act.
Establishes uniform statewide requirements for the
performance of ear piercing conducted with a mechanical
device. These requirements include what type of device
shall be used for ear piercing, notification of the local
enforcement agency, training for a person that conducts ear
piercing in bloodborne pathogens and the prevention of
communicable diseases, piercing procedures, sanitary and
hygiene procedures, and additional training for a person
that will be piecing the cartilage of the upper ear.
Requires that a person must be at least 18 years of age to
conduct ear piercing with a mechanical stud and clasp
device.
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Allows a local enforcement agency to charge a one-time fee
in an amount between $25 and $45 for each facility
operating in its jurisdiction. Requires the fee amount to
not exceed the amount reasonably necessary to cover the
actual administrative costs. Allows, after December 31,
2013, a county to charge a different fee, set by local
ordinance, provided that the increased fee is necessary to
cover the actual costs of administering and enforcing the
program.
FISCAL IMPACT
According to the Assembly Appropriations Committee analysis
of AB 223, this bill has no direct state fiscal impact.
Prior legislation established the framework to be adopted
statewide and this bill codifies related regulations. The
analysis states that any workload created by this bill
falls on local health departments which would be authorized
to fund that workload through local public health fee
schedules. The analysis also states that several
requirements fall on agencies charged with the protection
of community health and safety. The analysis further
states that, like other locally funded programs, such as
solid waste, hazardous materials, and food inspection, the
body art regulatory and enforcement framework proposed in
AB 223 is fully fee-supported, with the fees levied on
individuals and business supporting the workload of the
regulator.
BACKGROUND AND DISCUSSION
The author points out that current law requires DPH to
establish statewide standards and for all body art
facilities to be regulated and inspected, but that
California still does not have statewide standards in the
body art industry that are sufficiently detailed for
effective local enforcement, more than a decade after this
requirement was signed into law. The author states that
few jurisdictions implement regulations at all and that the
majority of the body art industry in the state is
unregulated. The author contends that AB 223 will address
significant public health risks that can exist in an
unregulated industry such as HIV/AIDS, Hepatitis B and C,
and bacterial and viral infections.
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The author and sponsors point out that only 7 of 62 cities
and counties in the state with public health and
environmental health agencies have comprehensive local
programs that register and inspect body art practitioners
and their operations and facilities. The current lack of
enforceable statewide standards puts public health at risk,
provides an uneven playing field for the industry, and does
not accommodate reciprocity between local jurisdictions of
registered practitioners. The author and the sponsors
contend that AB 223 sets forth appropriate regulatory
standards for all industry stakeholders and is intended to
prevent tattooing and piercing in unsanitary sites by
unregistered practitioners.
Health concerns associated with body art
In 1996, the Business Changes Report identified body art as
the fifth fastest growing business in the United States.
In 2007, the Pew Research Center reported that 36 percent
of young people between the ages of 18 and 25 had a tattoo
and 30 percent had a body piercing somewhere other than
their ear, and that 40 percent of those age 26 to 40 had a
tattoo and 22 percent had a body piercing somewhere other
than their ear.
Unsafe tattooing and piercing practices can lead to serious
health impacts such as hepatitis or HIV infection, as well
a range of other blood-borne infections. Complications are
fairly uncommon, given how common tattoos and piercings
are, but because body art breaches the skin, infections are
a risk, nevertheless. Tattoo inks are classified as
cosmetics and therefore are not regulated by the Food and
Drug Administration. Long-term effects of these inks are
unknown. Specific risks of tattoos include bloodborne
diseases, skin disorders, skin infections, allergic
reactions, and complications during diagnostic imagining
such as an MRI. Piercing also carries risks, including
infection, allergies, nerve damage, and excessive bleeding.
Branding is the process in which a mark, usually a symbol
or ornamental pattern, is burned into human skin tissue
with a hot iron or other instrument, with the intention
that the resulting scar makes it permanent. It is often
used as a form of initiation in fraternities, gangs, and
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prison groups, but can also be a strictly decorative
procedure when performed at a body art facility. Not as
popular or as common as other forms of body art, it
nonetheless poses distinct health risks due to the burning
of human tissue.
Current requirements
AB 186 (Brown), Chapter 742, Statutes of 1997, establishes
a statutory scheme to regulate body art practitioners, and
requires the California Conference of Local Health Officers
(CCLHO) to establish safety standards and charge a fee as a
regulator, and requires registrants to comply with the
standards. DPH and CCLHO have differed in their
interpretation of requirements of the original law. This
bill would ensure that health and safety standards are
adopted and met statewide.
The CCLHO is an organization of all legally appointed
health officers in the state, that was created by the
Legislature in 1995 specifically to consult with, advise,
and make recommendations to, state departments, boards,
commissions and officials of federal, state, and local
government, the Legislature, and any other organization or
association on health matters. Pursuant to AB 186, CCLHO
is directed to establish sanitation and safety guidelines
and DPH is required to review and adopt them as standards.
According to the CCLHO, it has been working with an
affiliate organization, the California Conference of
Directors of Environmental Health, for over 10 years to
draft these guidelines and urge DPH to adopt them as
standards. CCLHO states that it has been concerned that
the draft guidelines would be unenforceable and considered
"underground" regulations unless formally adopted by DPH.
However, in January 2008, DPH issued a memo concluding that
regulations are not necessary, as current law does not
explicitly require DPH to adopt these standards. DPH
contends in the memo that, while current law makes
reference to the adoption of these standards by DPH, these
references do not reflect intent by the Legislature for DPH
to adopt regulations. Rather, DPH maintains in the memo
that it was the intent of the Legislature that, following
DPH's review and consultation of the standards established
by the CCLHO, DPH would distribute the standards to each
county health department.
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Legislative Counsel opinion
In response to the memo from DPH, the CCLHO obtained an
opinion from Legislative Counsel in October 2008 to
determine whether DPH's decision not to adopt the CCLHO
standards as state regulations precluded enforcement of the
standards by a county that has not adopted them as local
regulations. Based on an examination of the legislative
history of AB 186, which changed the entity required to
establish the standards from DPH to the CCLHO, Legislative
Counsel found that the Legislature did not intend to
require DPH to adopt the standards. Consequently,
Legislative Counsel concluded that DPH is not required to
adopt the CCLHO standards in order for those standards to
be enforceable.
Local ordinances
In the absence of statewide standards, several local
governments in California have enacted comprehensive body
art ordinances, including Los Angeles, Orange, Monterey,
San Francisco, Santa Clara, San Mateo, and San Diego.
Other counties, such as Sonoma, Kern, and Marin, are
considering adoption, but it is likely that they will not
proceed if this bill is enacted.
A Sacramento Bee article, dated May 5, 2010, reported that
the Sacramento Board of Supervisors recently put off voting
on an ordinance to regulate body art parlors after local
artists said the legislation did not properly address the
industry's concerns. The article reported that, at
present, there are at least 165 body art businesses in the
county, and that the county has little power to enforce
health regulations; when officials respond to unsafe body
art facility complaints, they can only tell tattoo artists
to be sure to register.
Ear piercing with a mechanical device
According to Studex, the largest producer of ear piercing
instruments in the world, several thousand California
businesses use mechanical devices to perform modern ear
piercing in retail businesses. Many of these businesses
sell jewelry and have long provided ear piercings as an
ancillary service. These businesses include jewelry
stores, beauty supply and cosmetic stores, accessory stores
and large chain retailers.
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Prior legislation
AB 517 (Ma) of 2009 which was almost identical to AB 223,
would have established the Safe Body Art Act to provide
comprehensive statewide regulations on the body art
industry. In his veto message, Governor Schwarzenegger
stated that he did not see a compelling need for additional
legislation, given that body art guidelines were developed
several years ago, local jurisdictions have the option to
establish these requirements in their own county, and many
have chosen to do so. This bill was vetoed by the
Governor.
AB 186 (Brown), Chapter 742, Statutes of 1997, requires the
CCLHO to establish safety and sterilization standards for
body art practitioners; requires practitioners to register
with, and pay a fee to, the county health department in
their jurisdiction; requires county health departments to
conduct annual inspections; and, establishes a task force
to recommend legislation to address the health of persons
seeking tattooing, body piercing, and permanent cosmetics.
SB 1360 (Senate Committee on Health and Human Services),
Chapter 415, Statutes of 1995, creates the CCLHO to serve
as an advisory body to specified entities on matters
affecting health.
Arguments in support
The sponsors of this bill, the California Association of
Environmental Health Administrators, the Health Officers
Association of California, and the Association of
Professional Piercers maintain that, despite requirements
in existing law and repeated calls from both health
practitioners and established body art professional trade
associations, California still does not have enforceable
statewide standards that are sufficiently detailed for
consistent and effective local enforcement.
Proponents of the bill state that this bill represents an
extensive multi-year effort between public health and
environmental health representatives, individual
practitioners and body art trade associations to ensure
that the statewide standards proposed are not only
protective of public health, but fair and reasonably
enforceable.
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Blood Centers of California states that bloodborne disease
transmission and the licensure and regular inspection of
body art facilities are critical issues in the deferment of
over 100,000 adults with body art or body piercing. The
Blood Centers of California further states that this
deferral of otherwise healthy adults represents the loss of
a huge donor source in all volunteer donor blood supply for
the state. The Blood Centers of California contends that
the standards and regulation AB 223 provides will result in
an increase in the potential blood donor source in
California.
The Studex Corporation, responding only to the ear piercing
section of AB 223, states that this bill sets clear and
consistent statewide standards for modern ear piercing,
important for the protection of customers throughout the
state. Studex adds that the bill provides much needed
certainty, clarity and statewide uniformity to the
regulatory oversight of this business. Studex contends
that AB 223 provides an important step in making sure that
regulatory approach and authorized activities do not change
from location to location and the rules based in medical
fact are not arbitrary.
PRIOR ACTIONS
Assembly Education Committee 6-3
(Previous version of bill, different subject)
Assembly Rules Committee 10-0
Assembly Health Committee 18-0
Assembly Appropriations Committee17-0
Assembly Floor 68-0
COMMENTS
1. Record keeping requirements for single-use,
presterilized instruments may be excessive. The bill
requires a body art facility that uses purchased
disposable, single-use, presterilized instruments to
maintain a record of the purchases, and a log of all
procedures, for one year. However, one year may be
burdensome, both for body art facilities and for enforcing
agencies. A suggested amendment, to achieve the author's
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intent to verify the use of disposable, single-use,
presterilized instruments, would be to limit the period to
90 days.
Suggested amendment:
On page 20, lines 8 - 12:
In place of the requirements for maintaining sterilization
records, the following records shall be kept and maintained
for one year a minimum of 90 days following the use of the
instruments at the site of practice for the purpose of
verifying the use of disposable, single-use, presterilized
equipment:
2. Technical amendment:
On page 26, lines 35 - 37:
The fee charged shall not exceed the amount reasonably
necessary to cover the actual administrative costs of
administering and enforcing the provisions of this the
article.
POSITIONS
Support: California Association of Environmental Health
Administrators (sponsor)
Health Officers Association of California (sponsor)
Alliance of Professional Tattooists (sponsor)
Association of Professional Piercers (sponsor)
Alameda County Environmental Health Department
American Academy of Pediatrics California District
American Nurses Association California
American Red Cross, California
Blood Centers of California
Body Manipulations
Calaveras County Environmental Health Department
Calaveras County Public Health Department
California Alliance for the Promotion of Safe Body
Art
California Medical Association
California Sharps Coalition
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California State PTA
City of Palm Desert
City of Vernon Health and Environmental Control
Department
County Health Executives Association of California
County of Butte Department of Public Health
County of Glenn Environmental Health
County of Humboldt Department of Health and Human
Services
County of Lake Health Services Department
County of Marin Environmental Health Services
County of Nevada Public and Environmental Health
Departments
County of San Bernardino, Board of Supervisors
County of San Mateo, Board of Supervisors
County of Sonoma, Department of Health Services
County of Yolo, Health Department
Madera County Public and Environmental Health
Departments
Mariposa County Health Department
Napa County, Department of Environmental Management
San Francisco, Department of Public Health
Studex Corporation
Oppose: None received
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