BILL ANALYSIS                                                                                                                                                                                                    






                                 SENATE HEALTH
                               COMMITTEE ANALYSIS
                       Senator Ed Hernandez, O.D., Chair


          BILL NO:       AB 300                                      
          A
          AUTHOR:        Ma                                          
          B
          AMENDED:       March 10, 2011                              
          HEARING DATE:  June 8, 2011                                
          3
          REFERRAL:      Public Safety                               
          0
          CONSULTANT:                                                
          0
          Tadeo                                                      
                                     SUBJECT
                                         
                               Safe Body Art Act

                                         
                                    SUMMARY  

          Enacts the Safe Body Art Act, providing statewide standards 
          for the oversight and 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 
          (CCLHO)  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 of adoption 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, and makes it an infraction for 
          any person to offer or perform body piercing upon a person 
          under the age of 18, unless the body piercing is performed 
          in the presence of, or as directed by, a notarized writing 
          by the person's parent or guardian, unless the person is an 
          emancipated minor.

          This bill:
          Repeals current provisions governing the development of 
          standards for the body art industry, effective July 1, 
          2012. 

          Effective July 1, 2012, 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 cosmetic application, or 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, has a history of herpes infection 
          at the proposed procedure site, diabetes, allergic 
          reactions to latex, hemophilia, cardiac valve disease, 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 a body art practitioner to obtain all necessary 
          permits to conduct business, including, but not limited to, 
          being registered with the local enforcement agency.  Allows 
          for a practitioner in violation of this requirement to be 
          subject to suspension and a penalty, as specified. 

          Requires an owner who operates a permanent or temporary 
          body art facility to obtain all necessary permits to 
          conduct business, including, but not limited to, a permit 
          issued by a local enforcement agency.  Allows for an owner 
          in violation of this requirement to be subject to closure 
          of the facility and a penalty, as specified.  

          Requires an owner of a body art facility to provide, and a 




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          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 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. 

          Requires the sponsor of a temporary body art event to 
          obtain all necessary permits to conduct business, 
          including, but not limited to, a permit issued by a local 
          enforcement agency.  Allows for a sponsor in violation of 
          this requirement to be subject to closure of the temporary 
          body art event and a penalty, as specified. 

          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, 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 




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          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, but are not limited 
          to, which 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 piercings with a mechanical stud and clasp 
          device.  

          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, 
          2015, a local enforcement agency 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 300, this bill would have no direct state fiscal 
          impact. While most provisions of AB 300 provide specific 
          direction to body art practitioners and businesses with 
          respect to clean and sanitary practices, any workload 
          created by this bill would be the responsibility of local 
          health departments, which are authorized to fund that 
          workload through local public health fee schedules. 

          The analysis states that several requirements would be the 
          responsibility of agencies charged with the protection of 
          community health and safety, and like other locally funded 
          programs such as solid waste, hazardous materials, and food 
          inspection, this body art regulatory and enforcement 
          framework is fully fee-supported with the fees levied on 




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          individuals and business subject to regulation and 
          enforcement. 

          The analysis also states that this bill has minor 
          non-reimbursable local law enforcement costs, offset to a 
          degree by increased fine revenue to local enforcement 
          agencies.


                            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 300 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.

          The author and sponsors of AB 300 point out that only seven 
          of sixty-two 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.  
          According to the author and sponsors, 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 300 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 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 




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          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 bloodborne 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, with limited exceptions, 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 
          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, 
          requires the 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 




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          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.      

          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 County Board of Supervisors recently put off 




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          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.    

          Prior legislation
          AB 223 (Ma) of 2010 and AB 517 (Ma) of 2009, which were 
          substantively similar to AB 300, would have established the 
          Safe Body Art Act to provide comprehensive statewide 
          regulations on the body art industry.  In his veto messages 
          on the bills, 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.  
          
          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 public health.  
          
          Arguments in support




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          The sponsors of AB 300, the California Association of 
          Environmental Health Administrators, the Health Officers 
          Association of California, the Association of Professional 
          Piercers, and the Alliance of Professional Tattooists 
          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.  

          Blood Centers of California states that federal regulations 
          minimally require a one-year deferral from blood donation 
          for potential donors with tattoos and body piercings 
          performed in facilities that are not licensed or inspected 
          by the state, resulting in an estimated 100,000 deferrals 
          nationally.  The Blood Centers of California adds that this 
          deferral of otherwise healthy adults represents the loss of 
          a huge source of donor blood supply in the state.  The 
          Blood Centers of California contends that the standards and 
          regulations AB 300 provides will result in an increase in 
          potential blood donors in California.  

          The Studex Corporation, responding only to the ear piercing 
          section of AB 300, states that this bill sets clear and 
          consistent statewide standards for modern ear piercing, 
          which is 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 industry.  Studex contends 
          that AB 300 provides an important step in making sure that 
          the regulatory approach and authorized activities do not 
          change from location to location, and the rules are based 
          in medical fact and are not arbitrary.  


                                  PRIOR ACTIONS





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           Assembly Health:    17- 0
          Assembly Appropriations:16- 0
          Assembly Floor:     71- 0
                                         
                                    COMMENTS
           
          1.  Documentation of experience for first-time registrants. 
           The author will be offering amendments to require 
                  documentation of experience for body art practitioners who 
          are registering for the first time. 

          Page 8, between lines 30 and 31, insert:
             (5) For first-time registrants, documentation evidencing 
            a minimum of six months' related experience.  The local 
            enforcement agency may require documentation that 
            includes, but is not limited to, dates, type, and 
            location of work, and the name and contact information of 
            the registrant's supervisor or supervisors.
                
                                         
                                   POSITIONS  
                                        
          Support:  Alliance of Professional Tattooists (co-sponsor)
                    Association of Professional Piercers (co-sponsor) 

                    California Association of Environmental Health 
                         Administrators (co-sponsor) 
                    Health Officers Association of California 
               (co-sponsor)
                    Alameda Alliance for Health
                    Alpine County Public Health Department
                    American Academy of Pediatrics, California 
                    District
                    American Red Cross
                    Blood Centers of California
                    Body Manipulations
                    California Chapters of the American Red Cross
                    California Environmental Health Association
                    California Hepatitis Alliance
                    California Society of Dermatology and 
                    Dermatologic Surgery
                    California State Association of Counties
                    City and County of San Francisco
                    City of Vernon
                    County Health Executives Association of 
                    California




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                    County of San Bernardino
                    County of Santa Clara Board of Supervisors
                    County of Sonoma Department of Health Services
                    Humboldt County Department of Health and Human 
                    Services
                    Kaiser Permanente
                    Lake County Health Services Department
                    Marin County Environmental Health Services
                    Mariposa County Public Health Department
                    San Francisco Department of Public Health
                    San Joaquin County Environmental Health 
                    Department
                    Studex Corporation

          Oppose:None received

                                    --END--