BILL ANALYSIS Ó
AB 1576
Page A
Date of Hearing: April 29, 2014
ASSEMBLY COMMITTEE ON ARTS, ENTERTAINMENT, SPORTS, TOURISM, AND
INTERNET MEDIA
Ian C. Calderon, Chair
AB 1576 (Hall) - As Amended: April 21, 2014
SUBJECT : Occupational safety and health: adult films.
SUMMARY : Enacts specific requirements related to injury and
illness prevention programs in the adult film industry (AFI), as
specified. Specifically, this bill :
1)Defines "adult film" to mean any commercial film, video,
multimedia, or other recorded representation made or
distributed for financial gain, 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 FEDERAL LAW :
1)The First Amendment to the United States Constitution provides
AB 1576
Page B
that Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof; or
abridging the freedom of speech, or of the press; or the right
of the people peaceably to assemble, and to petition the
Government for a redress of grievances.
2)Producers of books, magazines, periodicals, films, videotapes,
or other matter which contain visual depictions of actual, not
simulated, sexually explicit conduct are required to maintain
records of each performer portrayed in a visual depiction of
sexually explicit conduct and to affix a statement to the
product describing where the records are located.
3)Each employer shall furnish to each of his employees
employment in a place of employment which are free from
recognized hazards that are causing or likely to cause death
or serious injury or serious physical harm to his employees
and shall comply with all occupational safety standards.
EXISTING STATE LAW :
1)Creates the Occupational Safety and Health Standards Board
(Board) within the Department of Industrial Relations.
2)Provides that the Board, by an affirmative vote of at least
four members, may adopt, amend or repeal occupational safety
and health standards and orders.
3)Declares that the Board shall be the only agency in the state
authorized to adopt occupational safety and health standards.
4)States that the Board shall adopt standards at least as
effective as the federal standards for all issues for which
federal standards have been promulgated under Section 6 of the
Occupational Safety and Health Act of 1970 (P.L. 91-596)
within six months of the promulgation date of the federal
standards and which, when applicable to products which are
distributed or used in interstate commerce, are required by
compelling local conditions and do not unduly burden
interstate commerce.
5)Declares that in order to protect the privacy of individuals
who are the subject of testing for human immunodeficiency
virus (HIV), no person shall be compelled in any state,
county, city, or other local civil, criminal, administrative,
legislative, or other proceedings to identify or provide
AB 1576
Page C
identifying characteristics that would identify any individual
who is the subject of an HIV test, subject to specified
exception.
FISCAL EFFECT : Unknown
COMMENTS :
1)Rational for Legislation: Workplace Safety Concerns In The
Adult Film Industry :
a) Author's Statement of Need for Legislation : According
to the author, "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
(LADPH), workers in adult films are at least seven times
more likely to be infected with a sexually transmitted
disease (STD), such as HIV, than the population at large.
In 2013, there were 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."
b) Incidents of Adult Film Performers' Exposure to HIV and
Other STD's Gives Rise to Concerns Over Industry Practices :
According to information submitted by the supporters of AB
332 (Hall), substantially similar legislation heard by this
committee last year, "The US 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
AB 1576
Page D
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 that 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. (It should be
noted that the current industry protocol is testing every
14 days.)
AB 1576
Page E
"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.
2)Existing State Law: Blood Borne 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
AB 1576
Page F
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 allow the
required use of condoms or similar barrier protections.
3)Industry Response to Performer Exposure Events:
Self-Regulation Through Testing : The AFI has implemented
voluntary compliance with CalOSHA's requirement for employers
to have an exposure control plan (ECP) to minimize the risk of
employee exposure to blood-borne pathogens. The following are
excerpts from the AFI Blood-borne Pathogens Exposure Control
Plan, which was provided to the committee by the Adult
Protection Health and Safety Services (APHSS).
Exposure Control Plan: This ECP is a key document to assist
our company in implementing and ensuring compliance with the
CalOSHA standard for blood-borne pathogens, thereby protecting
our employees and contractors. This ECP contains the
following:
Determination of employee and contractor exposure
Implementation of various methods of exposure control
including:
o Universal precautions
o Work practice controls
o Personal protective equipment
o Housekeeping
Post exposure evaluation and follow-up
Communication of hazards to employees and contractors
Employee and contractor training/education
Recordkeeping
Procedures for evaluating circumstances surrounding
exposure incidents
Testing : 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
amplification"). Following the results of these tests, the
performers are listed as "Available" or "Unavailable" to work
on an APHSS database.
AB 1576
Page G
Additional testing is recommended for performers new to the
industry, and includes the following for female performers
(re-examinations recommended every 6 months): Pelvic exam that
includes, evaluation for herpes, genital warts, Rectal Pap
smear (thin-prep with reflex HPV), PAP smear ("thin-prep with
reflex HPV"), Vaginal culture for bacterial vaginosis,
trichomonas, Hepatitis A, B & C, and Syphilis (an "RPR" and
Trep-Sure test). For male performers (re-examinations
recommended every 6 months), a genital exam including an
evaluation for herpes and genital warts and rectal pap smear
if you are a "bottom" (thin-prep with reflex HPV) is
recommended.
1)Supporters: Statewide Law is Needed to Protect AFI Workers
from STDs including HIV : The AIDS Healthcare Foundation,
sponsors of both Measure B and AB 1576, write the committee in
support to say, "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 2,000-3,000
Californians who are employed as performers, but the roll call
of performers is constantly shifting. The 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 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.
AB 1576
Page H
"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.
"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, Planned Parenthood supports AB 1576, based upon
their belief that, "Increasing condom use is good for the
public health of California. During the recession, STI
education and other public health programs were cut down to
the bone and many county health clinics shut their doors due
to lack of funding. Lack of access to these services has
profoundly impacted Californians and has resulted in an
alarming rise of STIs throughout the state. This measure
seeks to address a small population of workers who are
disproportionally affected by STIs, including HIV. AB 1576
will provide statewide uniformity needed to ensure that the
thousands of actors employed throughout the state in this
multi-billion dollar industry are given reasonable workplace
safety protections needed to reduce exposure to HIV and other
communicable diseases."
Finally, 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."
AB 1576
Page I
2)Opposition: This Measure Is Unconstitutional, Unnecessary and
Will Harm the Economy : Counsel for Vivid Entertainment, LLC
states the following in opposition, "Although the latest
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 Free Speech Coalition (FSC) opposes for different reasons,
namely their belief that the existing protocols are working
well, pointing out, "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 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 ten years." The FSC point
out there is a constitutional distinction between their
voluntary testing program that private individuals agree to
submit to and a government compelled test mandated as a term
of employment, as is proposed by AB 1576. (The constitutional
issues are discussed further in comments below.)
Economic harm is another line of opposition as reflected in
the comments of the Valley Industry and Commerce Association
(VICA), who oppose this measure based upon their belief that,
"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, costumers and craft services that would otherwise
be out-of-work due to runaway mainstream film production.
AB 1576
Page J
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. ?
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."
3)Runaway Production: Media Reports Porn Filming Decline
Following Passage of
Measure B : According to recent media reports, the number of
film permits issued to adult film producers decreased by 95%
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<1>. Other media reports have
indicated that adult film production may have shifted to other
jurisdictions<2> to avoid the reach of Measure B, including to
Las Vegas, Nevada<3>.
4)Discussion:
---------------------------
<1> Miles, Kathleen. "LA Porn Industry Disappears After Condom
Law." Huffington Post (November 19, 2013).
<2> Also see the discussion above about related ordinances and
other measures in neighboring jurisdictions.
<3> Dreier, Hannah. "Porn Production Moves to Vegas After LA's
Condom Law." Associated Press (January 1, 2014).
AB 1576
Page K
a) Constitutional Issues Raised by Proposed Legislation :
AB 1576 contains a provision which requires an adult film
employer's injury prevention program to maintain "a log of
information" which the bill uses as the mechanism for
detailing the state mandated procedures and protocols for
the Adult Film Industry. The main provisions of the bill
are a requirement that employees engaging in defined
conduct must wear a "personal protective device," and that
each employee performing in an adult film is tested for
sexually transmitted infection, regardless of their on-film
conduct.
i) Free Speech Concerns Raised by Mandated Use of
Personal Protection Devices in AFI : Most adult
entertainment is entitled to some degree of First
Amendment protection. For example, in City of Erie, et
al. v. Pap's A.M. (2000) 529 U.S. 277, 289, the Supreme
Court noted that nude dancing is expressive conduct,
although the Court found that it fell "within the outer
ambit of the First Amendment's protection".
(It should be noted, however, that there are two types of
pornography that receive no First Amendment protection -
obscenity and child pornography. Under the Supreme
Court's 1973 decision in Miller v. California (1973) 413
U.S. 15, jurors must consider several factors in
determining whether matter is obscene. These include
whether the average person, applying contemporary
community standards, would find that the work, taken
together, applies to prurient interests; the work depicts
or describes, in a patently offensive way, sexual conduct
specifically defined by state law; and, the work, taken
together, lacks serious literary, artistic, political or
scientific value.)
The making of non-obscene pornographic films has been
found to enjoy constitutional protection as an exercise
of free speech. In the seminal case of the People v.
Freeman (1988) 46 Cal.3d 419, the California Supreme
Court stated, "Regardless of our view of the social
utility of this particular motion picture, our analysis
must begin with the premise that a non-obscene motion
picture is protected by the guaranty of free expression
found in the First Amendment."
AB 1576
Page L
In Freeman , the court was confronted with the question of
whether the "making of a film" could be regulated as
conduct apart from the first amendment protections
afforded to the "content" of the film. Freeman was an
adult film producer charged with pandering in the
production of his films. The court held it could not,
saying, "the People argue that there is a distinction
between 'speech' (e.g., a film), which is
constitutionally protected under the First Amendment so
long as it is not obscene, and 'conduct' (the making of
the film), which may be prohibited without reference to
the First Amendment. Such a distinction is untenable in
this case."
Here, the author has attempted to avoid constitutional
pitfall by providing that "this paragraph (requiring use
of personal protective equipment), shall not be construed
to require that the personal protective equipment be
visible to the consumer in the finished film" suggesting
that this language shields the bill from challenge based
on the main thrust of the measure, which is the
requirement that adult film actors must use personal
protective equipment whenever acts of vaginal and anal
intercourse are filmed.
In Vivid Entertainment vs. County of Los Angeles , an
additional constitutional claim against Measure B is made
which could be raised similarly against AB 1576, based
upon prior restraint upon protected free speech under 42
U.S.C. Section 1983. In their complaint Vivid asserts,
"Measure B pre-emptively prohibits the production of and
adult film?if the performers do not use condoms for all
acts of anal or vaginal sex, even if in their sound
discretion and artistic judgment they would opt to forgo
doing so, Measure B thus violates the First Amendment by
standing as an unconstitutional prior restraint upon
protected expression and the creation and distribution of
protected speech."
ii) Ongoing Litigation: Answers to 1st Amendment
Questions Are Still Pending : As widely reported in the
press, 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
AB 1576
Page M
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. As
summarized in the Assembly Labor Committee analysis:
"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.
"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.
"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."
b) Privacy Issues Raised by Government Mandated Testing for
STDs and Maintaining Records of Medical Test Results : "The
passage of AB 1576 would make the California Assembly the
fourth government body in the state to specifically
regulate the adult film industry, but it would be the first
to mandate testing," so writes civil rights advocate Trevor
Boeckmann. "The California Division of Occupational Safety
and Health (Cal/OSHA) has attempted to regulate the adult
film industry for many years. Rather than requiring
employees to be tested, the agency's regulations rely on
less-intrusive preventative measures to protect performers
from transmission. In fact, Cal/OSHA specifically mentions
that medical records are to be kept confidential and the
only mention of testing is in a post-exposure context where
consent is needed.
AB 1576
Page N
"Similarly, the City of Los Angeles and County of Los
Angeles have both passed statutes regulating the adult film
industry. The latter passed with the support of 1.6
million residents. Both enacted stricter measure to
prevent transmission. Neither required testing as a
precursor to employment. AB 1576 would be the first bill
of its kind to take such an intrusive step." Id.
As pointed out by counsel for Vivid, "Government mandated
HIV testing has only been approved in very limited
circumstances in California. Generally, the California
Health and Safety Code requires informed consent for HIV
testing, except in a handful of circumstances, which are
prescribed by statute. There are a number of reasons for
this policy most notably that it is long established under
both Federal and State law that an HIV test is a 'search'
within the meaning of the United States and California
constitutions.
"The existing statutory exceptions to the general rule
requiring consent to test are generally in the context of
involuntary exposure to bodily fluids. See, e.g., Health &
Safety Code § 121055 (sex crimes); Health & Safety Code §
121056 (petition by certain forensic scientists coming in
contact with biological specimen); Health & Safety Code §
121060 (assault on officer, other law enforcement
personnel, or emergency medical personnel); see also Penal
Code § 1202.1 (conviction of rape - mandatory HIV testing);
Penal Code § 1524.1 (person charged with crime, where
victim exposed to fluids).
"The expansion of such government mandated testing into
consensual activities plainly raises questions under both
the U.S. and California Constitutions. Were the bill to
pass, it is certain that this provision would also be
challenged in Court on these grounds."
The Positive Justice Alliance and Center for HIV Law and
Policy oppose unless the mandated testing provisions are
removed, saying, "State-mandated STD testing raises
California 1st Amendment and federal 4th Amendment
constitutional concerns. In California, a person has a
right to privacy in maintaining confidentiality of their
HIV status. Urbaniak v. Newton , 277 Cal. Rptr. 354 (Cal.
Ct. App. 1991). The right to privacy weighs heavily in
AB 1576
Page O
favor of the individual and must be balanced with the
particular need for testing. This is evident in current
law. For example, even when a health worker may have been
exposed to a communicable disease, the state is not
authorized to draw blood or tissue to test a source patient
without his/her consent.
"Companies engaged in producing adult films may be unaware
of the myriad of confidentiality and privacy protections
for medical and public health records California Medical
Information Act ("CMIA") and the Privacy Rule of the Health
Insurance Portability and Accountability Act of 1996
("HIPAA") as well as the penalties for disclosure
established under Health and Safety Code §120980 and
121025. They are not regularly in the business of
notifying individuals of STD results and may be unaware
that notification of HIV and Hepatitis test results, for
example, require use of certain procedural protections
under Health and Safety Code §123148. Maintaining a
centralized 'log' may also violate rules of the ADA with
regard to protecting medical confidentiality of employees.
Medical records must be kept separate and confidential from
other employment records."
c) Draft AFI Regulations are Currently Before the OSHA
Standards Board : According to the sponsors, they
petitioned CalOSHA to begin a rulemaking process to address
the health and safety needs of the AFI. This process is
ongoing, and CalOSHA has held hearings, solicited
testimony, and is engaged in the rule-making process to
determine an appropriate standard for a specific
blood-borne pathogen control plan for the AFI.
It has been reported that the OSHA Standards Board has held
a number of advisory meetings, 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."
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
AB 1576
Page P
occupational exposures 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."
Adoption of AB 1576 at this point thus would circumvent the
current CalOSHA public input and hearing procedure,
substituting its provisions regarding the standard for
prevention of the spread of infection and disease for that
of the regulatory authority charged with making such
determinations.
d) Potential Loophole: Employees Covered Under Bill, But Not
Independent Contractors :
This bill would require "employees" performing in an adult
film to submit to mandatory testing and use of a personal
protective device while performing in an adult film.
However, as was discussed in the Labor Committee analysis,
just who is an "employee" and who is an "independent
contractor" in the AFI is the subject of confusion and
controversy. Independent contractors would not be required
to comply with AB 1576, as it is only directed at employees
covered under the OSHA. Therefore, one could imagine that
an unintended consequence might be restructuring the AFI to
ensure no performer is an "employee" thereby avoiding AB
1576 altogether.
According to the Labor Committee analysis, "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."
5)Prior Related Legislation :
a) AB 332 (Hall), of the 2013-14 Legislative Session, was
AB 1576
Page Q
substantially similar to the instant measure. That bill
would have established workplace standards and controls, as
specified, for employers engaged in the production of adult
films, and mandated that the California Division of
Occupational Safety and Health Administration (CalOSHA)
adopt these standards as emergency regulations. AB 332 was
held in Assembly Appropriations Committee.
b) AB 640 (Hall), of the 2013-14 Legislative Session, was
also substantially similar to the instant measure and AB
332. That bill would have required an employer engaged in
the production of an adult film to adopt prescribed
practices and procedures to protect employees from exposure
to, and infection by, sexually transmitted diseases. AB
640 was held in Senate Rules Committee.
c) AB 847 (Salas) of the 2009-10 Legislative Session, would
have imposed a 20% tax on retailers that operate adult
entertainment venues which would be transferred to the
Adult Entertainment Venue Impact Fund, which would have
been created by this bill. AB 847 was returned to the
Chief Clerk pursuant to Joint Rule 62(a).
d) AB 2914 (Charles Calderon), of the 2007-08 Legislative
Session, would have imposed an 8.3% tax on the sale of, or
the storage, use, or other consumption of, tangible
personal property that is adult material which would be
transferred to the Adult Entertainment Impact Fund, which
would have been created by this bill. AB 2914 was held on
the Assembly Appropriations Suspense File.
e) AB 1551 (Charles Calderon), of the 2007-08 Legislative
Session, would have imposed an 8% tax on the gross receipts
of an adult entertainment venue which would be transferred
to the Adult Entertainment Venue Impact Fund, which would
have been created by this bill. AB 1551 was returned to
the Chief Clerk pursuant to Joint Rule 56.
f) AB 2798 (Leslie), of the 2003-04 Legislative Session,
would have required that performers be tested for the
presence of sexually transmitted diseases before production
begins on a film containing sexual content. AB 2798 was
held in the Assembly Rules Committee and returned to the
Chief Clerk without further action.
g) AB 1013 (Charles Calderon) of the 1997-98 Legislative
AB 1576
Page R
Session, would have imposed a 5% tax on adult entertainment
products and services and a comparable excise tax on the
storage, use or other consumption of adult entertainment
products and services into the Victims of Violent Crime
Support Fund, which the bill would have created. SB 1013
was returned to the Secretary of the Senate pursuant to
Joint Rule 56.
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
Honorable Linda Parks, Ventura County Board of Supervisors, 2nd
District
Planned Parenthood
Professor Jeffery Klausner, Medicine and Public Health, UCLA
Paula Tavrow, PhD, Director, Bixby Program in Population and
Reproductive Health, Fielding
School of Public Health, UCLA
Western Occupational and Environmental Medical Association
Worksafe
Opposition
Center for HIV Law and Policy
Cutting Edge Testing
Cybernet Entertainment, LLC
Free Speech Coalition
HIV Prevention Justice Alliance
Ireland Entertainment
Manwin USA
Positive Justice Alliance
Positive Women's Network - USA
Sean Darcy, MD Profession Corporation
Unsound Labs
Valley Industry and Commerce Association
Vivid Entertainment, LLC
AB 1576
Page S
261 private citizens
Analysis Prepared by : Dana Mitchell / A.,E.,S.,T. & I.M. /
(916) 319-3450