BILL ANALYSIS �
AB 332
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Date of Hearing: April 24, 2013
ASSEMBLY COMMITTEE ON LABOR AND EMPLOYMENT
Roger Hern�ndez, Chair
AB 332 (Hall) - As Amended: April 17, 2013
SUBJECT : Occupational safety and health; adult films.
SUMMARY : Requires employers engaged in the production of adult
films to adopt specified practices and procedures related to
protection from sexually transmitted diseases. Specifically,
this bill :
1)Defines "employer" to mean a company, partnership, corporation
or individual engaged in the production of an adult film, as
defined.
2)Defines "employee" to mean a person who is an employee or
independent contractor that performs specified acts which
involve exposure to bloodborne pathogens or other potentially
infectious materials.
3)Requires an employer to maintain engineering and work practice
controls sufficient to protect employees from exposure to
blood and any potentially infectious materials, in accordance
with existing regulations.
4)Specifies that engineering and work practice controls shall
include, but are not limited to, the following:
a) Simulation of sex acts using acting, production, and
postproduction techniques.
b) Provision of and required use of condoms and other
protective barriers, as specified.
c) The provision of condom-safe water-based or
silicone-based lubricants to facilitate the use of condoms.
d) Plastic and other disposable materials to clean up sets.
e) Sharps containers for disposal of contaminated sharps,
including, but not limited to, any blades, wires or broken
glass.
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5)Requires an employer to maintain an exposure control plan in
accordance with specified existing regulations.
6)Requires an employer to make available the hepatitis B
vaccination and all medical follow-up for any employee engaged
in the production of adult films, at the employer's expense.
7)Requires an employer to pay the costs of required medical
monitoring such as STD testing and keep confidential employee
records.
8)Requires an employer to adopt, implement, maintain and update
a written health and safety program that meets the
requirements of the Injury and Illness Prevention Program
(IIPP) and the bloodborne pathogens standard of existing law.
9)Requires an employer to provide a training program in
accordance with existing regulations, as specified.
10)Requires the Occupational Safety and Health Standards Board
(OSHA Standards Board) by January 1, 2015, to adopt emergency
regulations to implement these requirements.
11)Provides that these requirements shall not be construed to
prohibit a city, county, or city and county from implementing
a local ordinance regulating the adult film industry provided
that nothing in the local ordinance contradicts any provisions
of this bill.
12)Provides that nothing in this bill shall be construed to
impede or replace HIV or other sexually-transmitted disease
screening of all individuals pursuant to specified screening
protocols.
13)Makes related legislative findings and declarations.
FISCAL EFFECT : Unknown
COMMENTS : This bill addresses an issue that has garnered
significant attention in recent years among public health
officials, occupational safety and health officials, and
interested stakeholders - how best to protect workers and
performers in the adult film industry from exposure to
bloodborne pathogens and other potentially infectious materials.
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This Committee conducted an informational hearing on this topic
in June 2004.
The analysis prepared by the Assembly Committee on Arts,
Entertainment, Sports, Tourism and Internet Media provides the
following summary of the nature of the concern:
"According to information submitted by the bill's
supporters, "The US adult film industry (AFI) produces
4,000 to 11,000 films and earns an estimated $9 to $13
billion in gross revenues annually. California is the
largest center for adult film production worldwide,
although adult film production occurs throughout the United
States. An estimated 200 production companies in Los
Angeles employ up to 1,500 workers.
The supporters and opponents of this measure provided the
committee with voluminous and often contradictory
statistics about the incidence of STDs in the AFI, and the
threat that exists for performers in being exposed to these
pathogens. There is consensus however, that a number of
highly publicized events surrounding outbreaks of the HIV
virus within the community of adult performers raised the
public profile of this intra-industry issue, and have drawn
the attention of various regulatory bodies. A brief
recitation of these events includes a 1980's outbreak which
led to a number of deaths and led to the current system of
testing within the industry. Another outbreak in 2004 saw
three actors test positive for HIV, and resulted in a
voluntary month long shut down of the industry. In both
2009, and 2010, one person was discovered to be infected by
the industry testing process, however according to a Los
Angeles Times story, LA County Public Health officials
believe unreported incidents may be as high as 16 in 2009.
Outbreaks such as those detailed above have drawn concern
from many quarters, including the American Public Health
Association, who wrote the following in their position
paper entitled: Prevention and Control of Sexually
Transmitted Infections and HIV Among Performers in the
Adult Film Industry.
'The industry's method for responding to outbreaks of STDs
and HIV among performers in the heterosexual segment of the
industry is voluntary STD/HIV testing. Although testing
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can contain the spread of disease, it does not prevent its
spread. Another limitation in the industry's use of
STD/HIV testing is the time period in which tests are
conducted. The current industry practice is to test
performers every 30 days; however, a performer could be
exposed to an STD infection immediately after testing, have
no symptoms, be highly infectious, and unknowingly transmit
the infection to others. The 30-day testing requirement is
not consistent with incubation periods for most STDs and
may therefore miss detection of disease.
'Despite repeated recommendations from local public health
officials, Cal/OSHA, and a Legislative hearing on how to
make the AFI safer, industry practices remain unchanged. ?
Flagrant violation of other Cal/OSHA worker protections
remains. Performers must still pay all STD screening tests
- a violation of Cal/OSHA standards, which requires the
employer to pay for medical monitoring. Further, to work,
performers must take an STD/HIV test and furnish test
results to their employer (production company) who posts
and shares these results with other production companies in
a database to which production companies and talent
agencies subscribe. Performers with a negative test result
can work, and those who are positive cannot work until they
receive a negative test. This practice violates a worker's
right to medical confidentiality and is not consistent with
the Cal/OSHA Blood-borne Pathogen Standard, which requires
employers to maintain a confidential medical record for
each employee.' American Public Health Association Policy
Statement 20102, 11/9/2010."
The industry has implemented voluntary compliance with existing
requirement for employers to have an exposure control plan to
minimize the risk of employee exposure to blood-borne pathogens.
Specifically, the Adult Protection Health and Safety Services
(APHSS) has adopted an industry-specific Blood-borne Pathogens
Exposure Control Plan.
APHSS testing protocols require each performer to submit to
regular testing for STDs, including HIV. According to
information supplied by APHSS, performers must be tested at a
minimum of every 28 days, and must take a blood test for HIV (by
"PCR RNA" Aptima) and Syphilis (TREP-SURETM) cascading to RPR,
and a urine test for Gonorrhea (by "ultra-sensitive DNA
amplification") and Chlamydia (by "ultra-sensitive DNA
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amplification"). Following the results of these tests, the
performers are listed as "Available" or "Unavailable" to work on
an APHSS database. Additional testing is recommended for
performers new to the industry, and includes specific
recommendations for female performers.
The Existing State Law Bloodborne Pathogen Standard
The regulations covering occupational health and safety require
employers to develop and implement an Illness and Injury
Prevention Program (IIPP, Title 8 of the California Code of
Regulations � 3203). Where the work environment includes risk
of disease transmission, the Division of Occupational Safety and
Health (DOSH) has required employers to address control methods
in their IIP. Many industries develop industry-wide IIPPs that
individual businesses can follow in good faith and be deemed in
compliance with the regulation.
DOSH also regulates workplace exposure to blood and other
potentially infectious materials controlled by employers through
an existing bloodborne pathogen standard (Title 8 of the
California Code of Regulations � 5193).
Among other requirements, the existing standard provides the
following with respect to personal protective equipment:
"Where occupational exposure remains after institution of
engineering and work practice controls, the employer shall
provide, at no cost to the employee, appropriate personal
protective equipment such as, but not limited to, gloves,
gowns, laboratory coats, face shields or masks and eye
protection, and mouthpieces, resuscitation bags, pocket
masks, or other ventilation devices."
Some have argued that this existing standard, as applied to the
adult film industry, would therefore already require the
provision of condoms or similar barrier protections.
Prior Enforcement Actions
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Since 2006, DOSH has issued several workplace safety citations
and fines to numerous adult film producers and distributers,
including: Next Phase Distribution, Inc. (2006); Evasive Angles
and TTB Productions (2006); La Touraine, Inc. (Jan. 15 2009);
Hot Desert Knights, Inc. (Mar. 24, 2009); Discount Video (Feb.
18, 2009); Hot House Entertainment (June 27, 2008); HDK
Distribution (Oct. 3, 2008); Anthony Gladdney d/b/a MVP
Entertainment Co. (Mar. 26, 2010); and Media Products, Inc.
(June 9, 2010).
In August 2009, the Aids Health Care Foundation (AHF) filed
workplace safety complaints under DOSH against 16
California-based adult film companies, including complaints
against Larry Flynt's Hustler Video. AHF's complaints asserted
that the films demonstrate unsafe and potentially
life-threatening behavior in a California workplace, as the
sexual acts were filmed without performers using condoms and
depicted the unprotected exchange of bodily fluids.
On March 21, 2011, DOSH issued three citations to Larry Flynt's
Hustler Video for workplace safety violations, including the
following:
� Violation of Title 8 CCR � 3203. Injury and Illness
Prevention Program. Failure to establish, implement, or
maintain a written Injury and Illness Prevention Program
(IIPP) which met OSHA standards for performers who were
exposed to hazards in the course of producing adult videos.
� Violation of Title 8 CCR � 5193(c)(1)(A). Bloodborne
Pathogens Program, Exposure
Control Plan. Failed to establish, implement or maintain
all the required elements of a written Exposure Control
Plan for performers who had reasonably anticipated contact
with "other potentially infectious materials" (OPIM), in
the course of producing adult films.
� Violation of Title 8 CCR �5193(d)(4)(A). Bloodborne
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Pathogens Program, Personal Protective Equipment. Failure
to ensure the use of appropriate personal protective
equipment, such as condoms, to performers who had
reasonably anticipated contact with "other potentially
infectious materials" (OPIM), in the course of producing
adult films.
On April 6, 2011, Larry Flint's Hustler Video filed an appeal of
the citations. The appeal was reportedly settled in a closed
session hearing on February 6, 2012.
It has been reported that one of the difficulties faced by DOSH
in enforcing the existing standard relates to whether the adult
film performers are employees or independent contractors. DOSH
generally has jurisdiction over occupational health and safety
issues only as they relate to employees. Some of the prior
citations issued by DOSH were challenged by adult film companies
on the grounds that the performers were independent contractors
rather than employees, and that therefore DOSH had no
jurisdiction. This bill appears to attempt to address that
issue by specifically defining "employee" to include individuals
who are employees or independent contractors.
Current Petition Before the OSHA Standards Board
On December 17, 2009, the AIDS Healthcare Foundation (AHF)(the
sponsor of this bill) submitted a petition to the OSHA Standards
Board seeking an amendment to the bloodborne pathogen standard
specific to the adult film industry. In its petition, AHF
proposed that the standard be amended to add a new subsection
that would clarify required protections for workers in the adult
film industry who are exposed to bloodborne pathogens and
sexually transmitted diseases. AHF asserted that, although the
existing standard provides protection for employees in the adult
film industry, the amendments and enhanced enforcement are
called for because there is an epidemic of sexually transmitted
disease in the industry and the industry refuses to protect its
workers from exposure to potentially infectious materials by
requiring the use of condoms and implementing other control
measures.
AHF states that since the petition was filed in 2009, the OSHA
Standards Board has held 6 advisory meetings resulting in the
circulation of proposed draft language. However, AHF asserts
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that this process has languished and there is no indication that
a revised standard is forthcoming.
County of Los Angeles Measure B
On November, 12, 2012, Los Angeles County citizens approved the
County of Los Angeles Safer Sex in the Adult Film Industry Act
("Measure B") initiative by a 57-43% margin. Measure B requires
the use of condoms for specified acts during the production of
adult films. It is reported that nearly 90 percent of all
legally distributed adult films made in the United States are
filmed in Los Angeles County.
General Requirements
Measure B is enforced by requiring individual adult film
producers or adult film production companies to obtain public
health permits issued by the Los Angeles County Department of
Public Health ("Department"). In absence of such permit,
individual producers and film production companies cannot film
adult films. Before an individual or production company can
retain such permit, the individual must complete a blood
pathogen training course approved by the Department. In the
case of a company, all principals and management level
employees, including film directors, must complete the course.
An application fee for the permit must also be paid.
After completion of the course, the individual or production
company is issued a health permit that is valid for two years.
Measure B requires the public health permit to be displayed at
all filming locations and clearly visible to adult film
performers. The permit also requires that a legible sign be
displayed, in no less than 36 font, that states "the use of
condoms is required for [specified acts] during the production
of adult films . . . any public health concerns regarding any
activities occurring during the production of adult films should
be directed to the Los Angeles County Department of Public
Health."
Permit-Suspension, Revocation and Fines
The public health permits issued to adult film producers may be
revoked or suspended by the Department for any violation of
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Measure B or any violation of law that creates a risk of
exposing performers to sexually transmitted infections. Measure
B explicitly states that the failure of an adult film producer
to require performers to use condoms during specified acts is a
violation its provisions.
If the Department determines that a violation has occurred, a
written notice to comply is issued to the permit holder. The
permit holder has fifteen days to request an administrative
review; the failure to do so is a waiver of the right to an
administrative review. Within five days of the administrative
review or waiver, the Department must issue a written a notice
of decision specifying the penalties imposed on the permit
holder and, if the permit is to be suspended or revoked, terms
upon which the permit may be reinstated or reissued, if any
(emphasis added). After the administrative review, the
Department may modify or continue their disciplinary action. A
permit may also be reissued or reinstated if the Department
determines that the conditions leading to the permit suspension
or revocation is corrected.
The Department also has the ability to immediately suspend the
permit, impose any fines permitted by the measure, or initiate a
criminal complaint if any immediate danger to the public health
or safety is found or is reasonably suspected. The Department
must issue to the permit holder a written notice to comply
setting forth the acts or omission with which the permit holder
is charged. The permit holder may correct the deficiencies
noted and request a re-inspection when the producer is actually
filming. The Department has discretion to reinstate or modify
its earlier action after re-inspection.
Compliance, Enforcement, and Operations
Measure B also imposes civil fines on individuals who violate
the act and makes it misdemeanor for willfully non-compliance of
its provisions. In regards to civil penalties, Measure B gives
the Department discretion to impose fines up to five-hundred
dollars per violation on individuals who violates its
provisions. For a criminal offence to be found, an individual
or entity is guilty of a misdemeanor if he or she violates any
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of Measure B's provisions, produces or films adult films for
commercial purposes without a valid permit, or willfully refuses
or neglects to conform to a county health officer's lawful order
or directive attempting to enforce Measure B. An offence is
either punishable by a fine up to $1,000, imprisonment not
exceeding six months, or a combination of the two.
A civil action to enjoin a person or entity from filming in
violation of Measure B may also be brought by the county's
counsel, the district attorney, or any person directly related
to the failure of the person or entity from conforming to
Measure B's provisions.
Finally, Measure B requires producers of adult films to provide
a written exposure control plan, approved by the Department,
describing how requirements of Measure B will be enforced.
Current Legal Challenges to Measure B
Attorneys for the adult film industry filed a complaint in
January 2013 in the United States District Court, Central
District of California seeking an order enjoining and
restraining Los Angeles County from enforcing Measure B. (Vivid
Entertainment, LLC v. Fielding, Complaint for Declaratory and
Injunctive Relief, at 21-22). Similar complaints were filed by
other filmmakers as well as individual performers. Among other
things, the complaints allege that Measure B violates the First
Amendment right to the freedom of speech, the Fourteenth
Amendment right to due process, and is preempted under
California state law.
ARGUMENTS IN SUPPORT :
This bill is sponsored by the AIDS Healthcare Foundation (AHF),
who states that it is intended to clarify in statute the
authority of DOSH to regulate the safety of workers in the adult
film industry.
Specifically, AHF states the following in support of this bill:
"The adult film industry accounts for thousands of
workplace disease infections in California every year.
During the production of adult films, workers, including
but not limited to performers, are exposed to a number of
sexually transmitted diseases. While these exposures fall
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under California's regulatory definition of 'bloodborne
pathogens,' the statute that directs the execution of
worker safety protections is inadequate to address the
unique characteristics of the adult film industry.
At any given time, there are approximately 2000-3000
Californians who are employed as performers, but the roll
call of performers is constantly shifting. The Los Angeles
Department of Public Health (LADPH) has documented an
epidemic of sexually transmitted diseases among workers in
the adult film industry. It attributes the epidemic to a
variety of high-risk acts which workers are required to
engage in, and to a lack of protective equipment for
performers, including condoms.
LADPH estimates that condoms and other protection are used
in less than 20% of hardcore heterosexual adult film. And
in a study of STDs in the Los Angeles adult film industry
to be published last December in Sexually Transmitted
Diseases, researchers found that consistent use of condoms
on set was as low as 1%.
According to LADPH, workers in the adult film industry are
ten times more likely to be infected with a sexually
transmitted disease than members of the population at
large. Also, the study noted above found that 2/3 of the
female study subjects and 1/3 of the male subjects had an
STD, vastly exceeding the STD rates in the general
population, and that 69% of them had worked in an adult
film in the previous 30 days.
In addition, similar to the garment industry, the adult
film industry provides unusual obstacles to enforcement:
there is not always a clear employer-employee relationship
and the filmmakers that actually employ the performers are
often fly-by-night businesses that are hard to track down
and may no longer exist.
The adult film industry has steadfastly refused to take any
steps to protect its workers from diseases spread by
bloodborne pathogens. Therefore, [this bill] clarifies
[DOSH's] authority relative to the adult film industry."
This bill is also supported by numerous individuals who state
the following:
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"People should not have to go to work and get sick. Workers
in the adult film industry are too easily exploited. [This
bill] provides [DOSH] more tools to protect workers from
exposure to disease, including the required use of condoms
in adult films.
Most Californians take comfort in knowing that when they go
to work, the state is looking out for their health and
safety on the job. Tragically, this is not the case for
workers in California's adult film industry. Adult film
workers currently are being excluded from the basic
workplace health and safety protections we all take for
granted.
Rather than leaving it to adult film producers to
self-regulate, [this bill] will implement effective best
practices in an industry that places unrestricted profit
above the welfare of workers?
?Going to work should not result in bodily harm or lifelong
disability. Since the adult film industry fails to provide
even a minimum standard of protection, local communities
end up shouldering the burden of cost as the health care
providers of last resort."
ARGUMENTS IN OPPOSITION :
This bill is opposed by the Free Speech Coalition (FSC), the
professional association of the adult products and entertainment
industry. FCS argues that this bill would impose unnecessary
regulations on the adult entertainment industry and excessive
costs on California taxpayers. FSC states the following in
opposition to this bill:
"The adult film industry's current standards and
self-regulation are very successful as represented by the
industry's low rate of STI transmission and no transmission
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of HIV on an adult set nationwide in more than 8 years.
Between April of 2006 and December of 2012 there have been
46,283 new cases of HIV reported in the state of
California. During that same time period only two
performers contracted HIV-off set-in their personal lives.
No transmission of HIV has occurred on an adult set since
2004 nationwide.
[This bill] won't work - History has shown us that
regulating sexual behavior between consenting adults does
not work. The best way to prevent the transmission of HIV
and other STIs is by providing quality information and
sexual health services.
[This bill] will hurt performers - If condoms were
mandatory existing testing protocols would likely
disappear. The protocols that are in place are there to
protect the performers and successfully do so. This is a
bad idea and will only hurt performers.
[This bill] will waste valuable resources - HIV funding in
CA has already been significantly reduced. Diverting
valuable dollars from existing programs to this program
will only hurt those already infected with HIV and will
reduce the resources to prevent others from contracting the
disease.
The state can't afford [this bill] - fees charged will in
no way cover the extensive bureaucracy that will have to be
created to implement this regulation. With massive
cutbacks in state resources, tax dollars going for
condom-police when there have been no transmissions of HIV
onset nationwide in 8 years is a serious waste of valuable
resources."
This bill is also opposed by the Valley Industry and Commerce
Association (VICA), who writes the following:
"Between April of 2006 and December of 2012 there have been
46,283 new cases of HIV reported in the state of
California. During that same time period only two adult
film performers contracted HIV-off set-in their personal
lives. No transmission of HIV has occurred on an adult set
since 2004 nationwide.
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Furthermore, LA County developed an epidemiological profile
in 2009 and a comprehensive HIV plan for 2012-2014. Neither
of these documents identified the adult film industry as a
risk or a place where the county should focus any of its
resources for HIV prevention?
?[This bill] is a bureaucratic solution without a problem.
The best way to prevent the transmission of HIV and other
sexually-transmitted diseases (STDs) is by providing
quality information and sexual health services. All of
these services are successfully provided through industry
protocols and best practices, which were created out of the
necessity to protect actor health.
This bill is clearly fueled by alternative motives to force
the adult film industry out of California. Yet, this six
billion dollar industry generates millions in state and
local tax revenue annually. Adult film production is also
responsible for a sizable number of jobs in the San
Fernando Valley and Los Angeles County, including but not
limited to actors, producers, directors, editors,
cinematographers, sound technicians, costumers and craft
services who would otherwise be out-of-work due to runaway
mainstream film production.
We ask that you oppose [this bill] and protect film
production of all types in California. While the spread of
HIV and STDs must be addressed, legislators should look at
options that accomplish the same goals but do not devastate
the adult film industry and its economic contribution to
the San Fernando Valley."
COMMITTEE STAFF COMMENTS :
1) Employee/Independent Contractor Issues
As discussed above, a major obstacle to DOSH's previous
enforcement actions under the existing bloodborne pathogen
standard has been the assertion by adult film production
companies that the individual performers are independent
contractors, rather than employees, and that therefore DOSH has
no jurisdiction. This bill attempts to resolve this difficulty
by defining an "employee" to mean an employee or independent
contractor, thereby statutorily providing that the bill's
requirements apply to such individuals regardless of their
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status as employees or independent contractors.
2) Enforcement Issues
Although DOSH does conduct targeted inspections of certain
industries, for the most part California's occupational safety
and health program is enforced through a complaint-driven
process. Often DOSH is engaged only after there has been an
incident resulting in a workplace injury or illness resulting
from an alleged violation of existing law. Moreover, the nature
of the adult film industry may present unique challenges to the
enforcement of the provisions of this bill.
Therefore, if the goal of this bill is to prevent exposures
before they occur, some may question whether the general DOSH
enforcement mechanism will achieve the purposes of the bill.
The sponsor generally responds to this concern by noting that
similar enforcement concerns exist with almost every industry in
California, particularly those industries in the underground
economy. They contend that such enforcement concerns do not
prevent policymakers from striving to ensure that there are
adequate laws and regulations in place to protect workers.
3) Constitutional Concerns
As discussed above, the lawsuits challenging Measure B, among
other things, assert that the provisions of the ordinance
violate the First Amendment right to freedom of speech. For a
more thorough discussion of these issues, please see the
analysis of this bill prepared by the Assembly Committee on
Arts, Entertainment, Sports, Tourism and Internet Media. This
bill has not been referred to the Assembly Judiciary Committee.
4) Need for a Statewide Standard?
In light of the fact that Measure B has only recently been
enacted and there is therefore not a lengthy enforcement
experience upon which to draw, some have questioned whether the
Legislature should enact a law as proposed by this bill that
would apply to the entire state.
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The sponsor responds to this concern by pointing to recent media
reports that suggest the adult film industry may be choosing to
film outside of Los Angeles County in order to avoid the reach
of Measure B. A recent article<1> in the Los Angeles Daily News
stated that in Los Angeles County, there have only been two
applications for film permits in the adult film industry so far
this year. The article notes that in previous years, an
estimated 500 film permits were requested by the adult film
industry annually in the county.
Another recent article<2> in the Los Angeles Times indicated
that, in response to an increase in requests for temporary film
permits, officials in the City of Camarillo passed a temporary
45-day moratorium on adult film production in that city.
Recently, Ventura County Supervisor Linda Parks announced that
she planned to introduce an ordinance similar to Measure B to
discourage adult film companies from making movies in the
Ventura County. The Ventura County Board of Supervisors is
expected to take up the ordinance in May.<3>
With respect to this issue, the sponsor states the following:
"First, worker safety is a state concern, no matter where
in the state it occurs. Second, having a mishmash of local
laws just ensures that producers will just go where they
can most easily get away with violating state law. For
example, Los Angeles County passed Measure B in November to
protect the public health during the making of adult films.
Since that time, the number of applications for permits
for adult films in neighboring Ventura County, which has no
such laws, has increased so dramatically that one city has
put a moratorium on new permits. Adult film producers have
made it clear that they will go anywhere they can in
California to avoid taking the measures necessary to
protect [their] workers from disease."
---------------------------
<1> Abram, Susan. "Porn Film Permits Have Dropped Dramatically
in L.A. County." Los Angeles Daily News (April 15, 2013).
<2> Knoll, Corina. "After Film-Permit Requests Jump, Camarillo
Adopts Porn Moratorium." Los Angeles Times (March 28, 2013).
<3> Associated Press. "L.A. County's Neighbor Mulls Porn Condom
Law." (April 20, 2013).
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5) Still Room for Testing?
Some have expressed concern that the provisions of this bill
would preclude industry-sponsored or other testing or screening
mechanisms that they argue better protect workers and ensure
that a performer is not required to perform with an individual
who has tested positive for HIV or another sexually-transmitted
disease. Others have expressed a related concern that this bill
may result in a situation where an individual who tests positive
may have a claim under reasonable accommodation provisions of
the Americans with Disabilities Act or the Fair Employment and
Housing Act that are entitled to employment, regardless of the
safety concerns of other performers.
The Free Speech Coalition states the concern as follows:
"Currently, the adult movie industry does not require any
performer to engage in filming with an HIV-positive
individual. The industry adopted the blood-borne pathogen
plan (BBP) in which EVERY performer is required undergo
advanced and regular testing for HIV or wear condoms.
Under industry testing protocols, all producers and/or
directors require performers to confirm a current negative
test panel prior to shooting. Each performer is also
entitled to receive confirmation that her partner has
current negative test results, thereby protecting EVERY
performer from the risk of transmission. The testing
protocols are based on recommendations of medical experts.
In large part due to the testing protocols, there has not
been a single reported incident of on-set transmission in
over eight years.
Unfortunately, [this bill] will abandon this testing
protocol, leaving performers without the ability to
identify the status of their sexual partners. Instead,
performers will be forced to engage in sexual activity with
individuals who are HIV positive; a significant rollback of
the industry's health and safety plan. According to the
FDA, the proper use of condoms still carries a risk of
transmission. Therefore, [this bill] will actually put
performers in greater risk of infection than under the
industry's own standards; currently, a performer is
notified of his or her positive test BEFORE any sexual
contact and the positive performer is prohibited from
participating in a movie shoot."
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The analysis prepared by the Assembly Committee on Arts,
Entertainment, Sports, Tourism and Internet Media also quoted
the following concerns from a recent editorial:
"Condoms undeniably help lower the risks of HIV infection.
But that doesn't mean the government should mandate condom
use in adult movies - and it certainly doesn't mean that
such regulation is a good idea. For one, the AFI would
have to make every performer an employee to satisfy the
California's Division of Occupational Safety and Health,
better known as CalOSHA, laws. This would be detrimental:
California's anti-discrimination laws prohibit requiring an
HIV test as a condition of employment; therefore the AFI's
current testing process, in which every performer is tested
for HIV monthly, would be illegal. Nor would adult film
producers be allowed to 'discriminate' by refusing
employment to HIV-positive performers. As a result,
untested and HIV-positive performers would be able to work
in the industry, raising the risks of HIV outbreaks..."<4>
With respect to testing or screening, this bill has been amended
to provide it shall not be construed to impede or replace HIV or
other sexually-transmitted disease screening of individuals
pursuant to specified screening protocols.
With respect to the reasonable accommodation issues, the sponsor
as follows:
"[This bill] does not change current law; DOSH is already
enforcing the bloodborne pathogen standard in adult
filmmaking. As far as we know, there has not been a single
case of employment discrimination brought against an adult
producer by a person with HIV or another STD who has been
refused employment as a performer in an adult film. We
cannot predict what a court might conclude if there ever is
a situation in which an adult film producer asserts that a
person's HIV or STD status is a medical condition that
might endanger the health and safety of the performer or
others (pursuant to Government Code 12940) and prevents
that person from performing. We cannot predict whether a
court would find that the use of a condom or other
protective barrier constituted a reasonable accommodation.
-------------------------
<4> Padilla, Alexandre. "Not-So-Safe Sex." Forbes.com
(December 7, 2009).
AB 332
Page S
But again, a case like that could happen now, and [this
bill] does not impact that possibility."
REGISTERED SUPPORT / OPPOSITION :
Support
AIDS Healthcare Foundation (sponsor)
American Congress of Obstetricians and Gynecologists
Beyond AIDS
California Communities United Institute
California Employment Lawyers Association
California Medical Association
Numerous individuals (hundreds)
Professor Jeffery Klausner, Medicine and Public Health, UCLA
Professor Paula Tavrow, Fielding School of Public Health, UCLA
Worksafe
Opposition
Cutting Edge Testing
Free Speech Coalition
Hot House Entertainment
Valley Industry and Commerce Association
Analysis Prepared by : Ben Ebbink / L. & E. / (916) 319-2091