BILL ANALYSIS                                                                                                                                                                                                    




                                                                  AB 1576
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          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  








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            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  








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            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  








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               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.)








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               "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  








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               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.








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            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.








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            "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."









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           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.   








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            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).







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             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."  









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                 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  








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                 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.








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               "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  








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               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  








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               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  








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               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  








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               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








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          261 private citizens

           
          Analysis Prepared by  :    Dana Mitchell / A.,E.,S.,T. & I.M. /  
          (916) 319-3450