BILL ANALYSIS Ó
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
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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--