BILL ANALYSIS Ó
AB 1576
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Date of Hearing: April 2, 2014
ASSEMBLY COMMITTEE ON LABOR AND EMPLOYMENT
Roger Hernández, Chair
AB 1576 (Hall) - As Amended: March 26, 2014
SUBJECT : Occupational safety and health: adult films.
SUMMARY : Enacts specific requirements related to injury and
illness prevention programs in the adult film industry, as
specified. Specifically, this bill :
1)Defines "adult film" to mean any commercial film, video,
multimedia, or other recorded representation during the
production of which performers actually engage in sexual
intercourse, as specified.
2)Requires an adult film employer's injury prevention program to
include a log of information for all scenes produced or
purchased, including, but not limited to, documentation that:
a) Each time an employee performing in an adult film
engaged in specified acts, personal protective equipment
was used to protect the employee from exposure to
bloodborne pathogens. This paragraph shall not be construed
to require that the personal protective equipment be
visible to the consumer in the finished film.
b) Each employee performing in an adult film was tested for
sexually transmitted infections according to the
recommendations of the Centers for Disease Control and
Prevention and the State Department of Public Health
current at the time the testing takes place, not more than
14 days prior to filming any scene in which the employee
engaged in specified acts and that the employer paid for
the test.
3)Makes conforming changes to existing law.
EXISTING LAW :
1)Requires every employer to establish, implement, and maintain
an effective injury prevention program.
2)Requires the program to be written, except as specified, and
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to include certain elements, such as the employer's system for
identifying and evaluating workplace hazards and the
employer's system for communicating with employees on
occupational health and safety matters.
3)Requires each employer having an employee with occupational
exposure, defined as reasonably anticipated specified contact
with blood or other potentially infectious materials that may
result from the performance of an employee's duties, to
establish, implement, and maintain an effective exposure
control plan designed to eliminate or minimize employee
exposure.
4)Requires, under specified circumstances, the employer to
provide, at no cost to the employee, appropriate personal
protective equipment that does not permit blood or other
potentially infectious materials to pass through to or to
reach the employee, as specified.
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.
This Committee conducted an informational hearing on this topic
in June 2004.
An analysis prepared by the Assembly Committee on Arts,
Entertainment, Sports, Tourism and Internet Media on a related
prior bill provided 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.
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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
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
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- 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 last year by APHSS, performers must be
tested at a minimum of every 28 days<1>, 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 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
---------------------------
<1> However, there are indications that the industry's current
protocol is for testing every 14 days.
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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.
Current Petition Before the OSHA Standards Board
On December 17, 2009, the AIDS Healthcare Foundation (AHF)
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.
It has been reported that since the petition was filed in 2009,
the OSHA Standards Board has held a number of advisory meetings,
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resulting in the circulation of draft language in June 2011. On
October 24, 2013, the OSHA Standards Board released a revised
draft for circulation. An email announcement accompanying the
revised draft stated, "The Division has edited the previous
draft, which was provided in June 2011. This draft has been
sent to the Board staff for their review. It is not a
rulemaking proposal at this time." (Emphasis provided).
The draft language would establish a new standard Section 5193.1
specific to sexually transmitted infections, and would cover
"all workplaces in which employees have occupational exposure to
bloodborne pathogens and/or sexually transmitted pathogens due
to one or more employees engaging in sexual activity with
another individual." Among other things, the draft language
would require an employer to provide all safeguards required by
the proposed section, "including barriers, personal protective
equipment, training, and medical services, at no cost to the
employee, at a reasonable time and place for the employee, and
during the employee's working hours."
Prior Enforcement Actions
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
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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
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.
DOSH Activity and Employee/Independent Contractor Issues
One of the difficulties faced by DOSH in enforcing the existing
standard relates to whether the adult film performers are
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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.
On March 25, 2010, DOSH issued a series of citations against
Treasure Island Media, Inc. (TIM), an adult film production and
distribution company. Among other things, the citation alleged
that TIM failed to develop an injury or illness prevention
program and failed to establish an exposure control plan under
the bloodborne pathogen standard. TIM appealed the citations
and argued, among other things, that (1) there was no employment
relationship because the performers were independent contractors
rather than employees, and (2) that the bloodborne pathogen
standard did not apply to the adult film industry.
On January 6, 2014, an Administrative Law Judge (ALJ) issued a
decision in the case. After examining the evidence and the
legal tests applicable for determining employee/independent
contractor status, the ALJ concluded that the production crew
and participants hired by TIM were employees and not independent
contractors: "Examining the facts in this case, a preponderance
of the evidence established that TIM controlled the work of the
participants<2>."
TIM also challenged whether the bloodborne pathogen standard
applied to the adult film industry, arguing that it was enacted
in reaction to the HIV/AIDS crisis and its focus was healthcare
workers. However, the ALJ concluded that the standard applies
to all workplaces (except those in the construction industry
which are specifically excluded) where employees are exposed to
blood or other potentially infectious materials.
TIM has appealed the ALJ's decision to the full OSHA Appeals
Board, so the final outcome of the appeal is still pending.
In addition, while the ALJ's decision in the case (especially
with respect to employee and independent contractor status) is
significant, it should not be overstated. Determinations of
employee/independent contractor status are very fact-specific
analyses and vary from situation to situation. Therefore,
---------------------------
<2> In the Matter of the Appeal of Treasure Island Media, Inc.,
Dockets 11-R6D1-1093 through 1095 (January 6, 2014).
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whatever the final outcome of the TIM case, other adult film
producers and distributors are likely to argue that the facts of
their situation are distinct and different from the TIM case,
and will likely continue to argue that their participants or
performers are independent contractors rather than employees.
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
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revoked or suspended by the Department for any violation of
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
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
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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.
Related Ordinances in Other Jurisdictions
During and following the adoption of Measure B, and after
concerns were expressed that adult film producers were moving
production out of Los Angeles County to avoid the reach of the
measure, several neighboring jurisdictions moved to enact
similar ordinances. In April 2012, the Simi Valley City Council
approved an ordinance requiring the use of condoms in adult film
production. In May 2013, the Ventura County Board of
Supervisors unanimously passed a similar ordinance. Prior to
this, the City of Camarillo enacted a moratorium on the issuance
of film permits for adult film production, and recently acted to
extend that moratorium for an additional year.
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.
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.
The court allowed the official proponents of Measure B to join
the case as interveners, and they filed a motion to dismiss the
lawsuit. At the same time, the industry asked for a preliminary
injunction to prevent Measure B from being implemented.
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On August 16, 2013, District Court Judge Dean Pregerson issued a
mixed decision. The court dismissed industry arguments that a
ballot initiative cannot implicate First Amendment rights, that
state law preempts Measure B, and that Measure B violates their
due process rights (with the exception of Fourth Amendments
claims related to search and seizure). However, the court
refused to dismiss industry prior restraint claims that Measure
B does not provide sufficient procedural safeguards, does not
have narrowly tailored requirements, and gives the County of Los
Angeles unbridled discretion.
One legal commentator<3> described the ruling as follows:
"In his 34-page ruling, Judge Pregerson handed partial
victories to the pornographers and to the Foundation.
Pregerson agreed with the filmmakers that provisions to
enforce the law are too sweeping - including powers to
revoke permits, conduct warrantless searches of film sets
and charge fees for permits. But Pregerson said the condom
law would help protect against sexually transmitted
diseases in a 'direct and material way.'
Finding the pornographers' First Amendment claim 'unlikely
to succeed on the merits,' Pregerson denied a preliminary
injunction on that issue.
The ruling cites data from the Department of Public Health
showing an increased risk of infection from sexually
transmitted diseases among porn actors, including chlamydia
and gonorrhea. The adult film industry claims it protects
its performers by regularly testing for STDs. But Pregerson
said the data introduced by the AIDS Healthcare Foundation
told a different story. The filmmakers 'by contrast, have
presented evidence from individuals in the adult film
industry, but not in the public health or medical
profession, who claim testing is so effective and universal
that condoms are unnecessary,' Pregerson wrote.
But Pregerson found that a permit fee of $2,000 to $2,500
could be unconstitutional because the AIDS Healthcare
Foundation failed to show those fees cover only
'revenue-neutral' administration costs. The judge was
-------------------------
<3> Reynolds, Matt. "Pornographers Seek to Overturn Condom
Law." Courthouse News Service (August 20, 2013).
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skeptical of a provision that lets the county revoke a
producer's permit without judicial review. He also found
the county should not conduct warrantless searches of porn
sets to determine whether producers are violating the law.
That left the question of whether Measure B, stripped of
those provisions, will be as effective. Pregerson said
that with some tweaking the county can still enforce the
law. 'Here, adult film actors must still use condoms. A
permit is still required. Although the permit may not be
modified, suspended, or revoked, fines and criminal charges
may still be brought against offenders,' Pregerson wrote.
'While administrative searches cannot occur, nothing
prevents law enforcement from obtaining a warrant to
enforce Measure B.'
On fees, the judge saw 'no reason to believe the
Department's Measure B duties cannot be performed without
fees - or performed at least until the fees' defect is
cured, either by enacting a new, constitutional ordinance
or providing this court with evidence of revenue
neutrality.'
The plaintiffs appealed the court's ruling to the Ninth District
Court of Appeals, which heard oral argument in the matter on
March 3, 2014. A decision from the Court of Appeal is pending.
Recent Media Reports on Industry Impact of Measure B
According to recent media reports, the number of film permits
issued to adult film producers decreased by 95 percent in Los
Angeles County following the enactment of Measure B. As of
November 19, 2013, only 24 permits for adult films had been
filed in Los Angeles County, compared with 480 filed in the same
period in 2012<4>. Other media reports have indicated that
adult film production may have shifted to other jurisdictions<5>
to avoid the reach of Measure B, including to Las Vegas,
Nevada<6>.
---------------------------
<4> Miles, Kathleen. "LA Porn Industry Disappears After Condom
Law." Huffington Post (November 19, 2013).
<5> Also see the discussion above about related ordinances and
other measures in neighboring jurisdictions.
<6> Dreier, Hannah. "Porn Production Moves to Vegas After LA's
Condom Law." Associated Press (January 1, 2014).
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Critics of Measure B contend that these reports confirm
predictions that the measure would drive the industry out of Los
Angeles County or underground (continuing to operate in Los
Angeles County but not in compliance with Measure B or other
requirements).
ARGUMENTS IN SUPPORT :
The author states the following in support of this bill:
"Adult film production is a multi-billion dollar industry.
California based production of adult films account for the
vast majority of this business, employing thousands of
Californians and generating millions of dollars in tax
revenue.
Workers in agriculture, food service, healthcare,
construction and many other industries benefit from
stringent work place safety requirements that keep workers'
compensation costs down and ensure a safe environment to
earn a living. The adult film industry, given the type of
work required, disproportionately exposes actors to a range
of health and safety risks. The industry is largely
self-regulated and has done an inadequate job of protecting
its employees from disease infection.
According to the Los Angeles Department of Public Health
(Department), workers in adult films are ten times more
likely to be infected with a sexually transmitted disease
(STD), such as HIV, than the population at large. In 2013,
there were up to five documented HIV transmissions of adult
film actors, leading to three separate self-imposed yet
unenforced production moratoriums.
The result of this unsafe work environment is a public
health crisis that would be preventable if reasonable steps
were taken to protect these employees in the workplace."
Therefore, the author argues that this bill will require adult
film industry employers to ensure that personal protective
equipment is used during the production of an adult film. The
bill also clarifies that employers must pay for mandatory STD
testing of each actor and that adult film actors must be tested
for STDs at least every fourteen days. While the bill requires
use of personal protective equipment in adult films, it does not
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require personal protective equipment to be visible in the
film's final product. The author concludes that this bill will
provide statewide uniformity needed to ensure that the thousands
of actors employed in this multi-billion dollar industry are
given reasonable workplace safety protections needed to reduce
exposure to HIV and other communicable diseases.
The AIDS Healthcare Foundation supports this bill, stating the
following:
"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
under California's regulatory definition of 'bloodborne
pathogens,' the statute that directs the execution of
worker safety protections is unclear about the obligations
of adult film employers to document their adherence to the
law.
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 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?published last December in Sexually Transmitted
Diseases, researchers found that consistent use of condoms
on set was as low as 1%. Aggravating the situation is the
tragic decision by some producers in the gay adult film
industry to abandon decades of condom-only production in
favor of films in which no protection is afforded to the
performers.
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
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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.
The adult film industry has steadfastly refused to take
appropriate steps to protect its workers from diseases
spread by bloodborne pathogens. Therefore, [this bill]
defines without ambiguity the records that must be kept by
the employer to document compliance with the requirements
that condoms and other protective barriers have been used
in any scene in which exposure to bloodborne pathogens
might occur and that employees performing in scenes are
tested for STIs frequently."
In addition, the California Medical Association (CMA) supports
this measure and states, "CMA has long been engaged in efforts
to prevent the spread of and to encourage early detection and
treatment of HIV. [This bill] is an important public health
bill that aligns with that historic body of work. Adult
entertainment workers are at high risk for being infected with a
sexually transmitted disease. Requiring the use of condoms and
STI testing are common-sense ways to decrease spread of
disease."
ARGUMENTS IN OPPOSITION :
Manwin USA, a leading information technology firm specializing
in adult content websites, opposes this measure, which it
characterizes as a "misguided effort to expand" Measure B
adopted in Los Angeles County. They contend that this bill
raises some of the same constitutional issues at issue in the
pending litigation over Measure B:
"Most provisions of Measure B have already been held
unconstitutional and the constitutionality of the remaining
provisions are currently before the Ninth Circuit Court of
Appeals (Vivid Entertainment, LLC v. Fielding, et al.).
The Ninth Circuit heard oral arguments on these remaining
issues on March 3, 2014, and will likely issue its ruling
on the matter sometime in the next several months. It is
our understanding that the pattern and practice of the
Legislature is not to interfere with pending litigation.
Accordingly, we request that you reject this measure as
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premature."
Similarly, counsel for Vivid Entertainment, LLC states the
following:
"Although the amended version of [this bill] stripped out
certain requirements, the remaining provisions still raise
the same core constitutional infirmities being addressed by
the Ninth Circuit in Vivid Entertainment, LLC v. Fielding
et al. The additional requirement of a government mandated
testing program not only fails to alleviate these
constitutional concerns, but, in fact raises substantial
additional ones?Given the overlapping legal issues raised
by both Measure B and [this bill], Vivid Entertainment
respectfully requests that the Legislature forgo any action
until litigation has concluded."
The Valley Industry and Commerce Association (VICA) opposes this
measure and states:
"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 revenues annually. Adult film production is also
responsible for a sizeable number of jobs in the San
Fernando Valley and Los Angeles County, including sound
technicians, propmasters, constumers and craft services
that would otherwise be out-of-work due to runaway
mainstream film production. These jobs have depleted since
the passage of Measure B, L.A. County's version of this
legislation; a statewide mandate will be the final straw."
Manwin USA raises similar concerns about the potential job and
economic impact of this measure, stating the following:
"Where the impact of [this bill] will be felt the most is
on small businesses and the thousands of workers who work
directly or indirectly for California's adult entertainment
industry. Adult film production in California directly
employs thousands of actors, directors, camera operators,
gaffers, and other tradespeople and support staff. In
addition, there are countless jobs indirectly generated
from production, with recent data showing that for each
direct job we create, approximately 3 other jobs are
created indirectly.
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Regardless of whether or not one watches or condones adult
films, the industry is responsible for billions of dollars
of economic activity in the state, the bulk of which is
generated in and around the San Fernando Valley, San Diego,
and San Francisco?Now, [this bill] seeks to push adult film
productions out of state.
Proponents of [this bill] argue, without any factual
support, that this won't occur, but the numbers tell a much
different story.
Since the passage of Measure B, film permits dropped in Los
Angeles County from 456 to 24 during the same time period
last year. This represented a revenue drop in film permits
alone of $450,000, not to mention the millions of dollars
lost by those ancillary businesses serving the Los Angeles
County adult film productions. Fortunately for California,
the scope of the job and revenue loss was mitigated by the
local nature of Measure B, as many businesses were able to
stay in business by following the productions outside of
Los Angeles County. However, not all of the businesses
that moved out of Los Angeles County stayed in California.
Numerous productions jumped state lines to Nevada, where
Las Vegas now represents the fastest growing adult film
location in the country. Were [this bill] enacted, and
restrictions placed on filming anywhere in California,
defections would accelerate rapidly."
Other opponents to this measure argue that current industry
protocols not only work, they work well. They argue that any
legislation that would diminish current industry protocols will
not only put performers at risk, but also destroy an extremely
effective HIV and STI prevention program. For example, the Free
Speech Coalition states, "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,
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there has not been a single reported incident of on-set
transmission in ten years."
PRIOR RELATED LEGISLATION :
AB 332 (Hall) from 2013 required employers engaged in the
production of adult films to adopt specified practices and
procedures related to protection from sexually transmitted
diseases. Among other things, AB 332 required an employer to
maintain engineering and work practice controls sufficient to
protect employees from exposure to blood and any potentially
infectious materials, including the use of condoms and other
protective barriers. AB 332 was held under submission in the
Assembly Appropriations Committee.
Subsequently, language virtually identical to AB 332 was amended
into AB 640 (Hall) in the Senate. AB 640 was referred to the
Senate Rules Committee, where it is still pending.
COMMITTEE STAFF COMMENTS :
1) Double Referral
This bill is double-referred to the Assembly Committee on Arts,
Entertainment, Sports, Tourism and Internet Media.
2) Employee/Independent Contractor Issues
As mentioned 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. AB 332 from last year attempted to resolve
this difficulty by defining an "employee" to mean an employee or
independent contractor, thereby statutorily providing that the
bill's requirements applied to such individuals regardless of
their status as employees or independent contractors.
This bill is limited to the DOSH context, where jurisdiction is
generally limited to occupational health and safety issues only
as they relate to employees. As discussed above, an OSHA
Appeals Board ALJ recently concluded that the production crew
and participants hired in one case were employees and not
independent contractors. However, as cautioned above,
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determinations of employee/independent contractor status are
very fact-specific analyses and vary from situation to
situation. Other adult film producers and distributors are
likely to continue to argue that the facts of their situation
are distinct and different from the prior case, and will likely
continue to argue that their participants or performers are
independent contractors rather than employees.
3) Other Related Issues Raised in Last Year's AB 332
Some opponents of AB 332 from last year expressed concerns that
the bill may have resulted 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 they are entitled to
employment, regardless of the safety concerns of other
performers.
For example, last year the Free Speech Coalition stated 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
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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."
The analysis prepared last year 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? 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..."<7>
Last year, the sponsor of AB 332 responded to these concerns 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.
But again, a case like that could happen now, and [this
bill] does not impact that possibility."
It is worth noting that the Fair Employment and Housing Act
provides that the prohibition against discrimination based on
disability or medical condition "does not prohibit an employer
from refusing to hire or discharging an employee who, because of
---------------------------
<7> Padilla, Alexandre. "Not-So-Safe Sex." Forbes.com
(December 7, 2009).
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the employee's medical condition, is unable to perform his or
her essential duties even with reasonable accommodations, or
cannot perform those duties in a manner that would not endanger
the employee's health or safety or the health or safety of
others even with reasonable accommodations." (Government Code
Section 12940 (a)(2))(Emphasis provided).
This is similar to the "direct threat" defense under the federal
Americans with Disabilities Act (ADA) which provides that an
employer may lawfully exclude an individual from employment for
safety reasons only if the employer can show that employment of
the individual would pose a "direct threat." The EEOC's ADA
regulations explain that "direct threat" means "a significant
risk of substantial harm to the health or safety of the
individual or others that cannot be eliminated or reduced by
reasonable accommodation."
4) Recent Amendment Regarding "Purchased" Scenes
The most recent set of amendments to this bill provide that an
adult film employer's injury prevention program shall include
specified information for all scenes produced "or purchased."
The author's office indicates that this amendment is intended to
make an adult film employer responsible for providing certain
information related not only to scenes they produce themselves,
but scenes that may have been produced by another individual or
entity and purchased by the adult film employer for
distribution.
Opponents have raised a series of additional concerns about this
specific amendment to the bill with committee staff, but at the
time of preparation of this analysis were still analyzing the
amendment and its implications. However, opponents did provide
a brief initial response as follows:
"The amendment appears to impose burdensome recordkeeping
requirements not only on the employer, but also on each
entity in the upstream chain of commerce, regardless of the
fact that they have no additional knowledge or information
regarding the underlying employer/employee relationship.
Not only is it unprecedented for an upstream purchaser in
this context to be required to keep records of downstream
worker safety, but as a practical matter, this will be very
costly, complicated, and burdensome to implement. Many
'scenes' are licensed to hundreds of different sites and/or
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distributors (i.e., those who 'purchase scenes'). Under
the proposed amendment, each will have to maintain detailed
records about the shoot, about which they have no actual
knowledge, and which raise serious and complex privacy and
compliance concerns (with respect to various state and
federal privacy and healthcare laws). Such concerns are
heightened and compounded given that many of those who
'purchase scenes' are not large sophisticated operations,
but small businesses, who may not have the expertise to
manage and protect sensitive information, such as
documentation of medical testing.
In addition, the record keeping provisions would be subject
to additional Constitutional challenge, regardless of the
outcome of the Ninth Circuit's consideration of Vivid v.
Fielding. As the record keeping requirements are limited
to 'adult film employers,' and 'adult films' are defined in
the statute based upon content, they are considered
content-based restrictions, and are subject to higher
constitutional scrutiny. The breadth of the amendment's
requirements, particularly targeting those who have no
independent knowledge of facts, cannot meet intermediate
scrutiny, let alone strict scrutiny."
REGISTERED SUPPORT / OPPOSITION :
Support
AIDS Healthcare Foundation
American Congress of Obstetricians and Gynecologists
Beyond AIDS
California Academy of Preventive Medicine
California Communities United Institute
California Employment Lawyers Association
California Medical Association
California Public Health Association-North
California State Association of Occupational Health Nurses
Fielding School of Public Health, UCLA
National Coalition of STD Directors
Planned Parenthood Affiliates of California
Professor Jeffrey Klausner of Medicine and Public Health, UCLA
Worksafe
Opposition
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Cutting Edge Testing
Free Speech Coalition
Ireland Entertainment
Manwin USA
Sean Darcy, MD Professional Corporation
Unsound Labs
Valley Industry and Commerce Association
Vivid Entertainment, LLC
Analysis Prepared by : Ben Ebbink / L. & E. / (916) 319-2091