BILL ANALYSIS Ó
AB 1576
Page 1
ASSEMBLY THIRD READING
AB 1576 (Hall)
As Amended May 14, 2014
Majority vote
LABOR & EMPLOYMENT 5-0 ARTS, ENTERTAINMENT, SPORTS
4-1
-----------------------------------------------------------------
|Ayes:|Roger Hernández, Alejo, |Ayes:|Ian Calderon, Waldron, |
| |Chau, Holden, | |Bloom, Gomez |
| |Ridley-Thomas | | |
| | | | |
|-----+--------------------------+-----+--------------------------|
| | |Nays:|Wilk |
| | | | |
-----------------------------------------------------------------
APPROPRIATIONS 9-3
--------------------------------
|Ayes:|Gatto, Bigelow, |
| |Bocanegra, |
| |Ian Calderon, Campos, |
| |Eggman, Gomez, Pan, Weber |
| | |
|-----+--------------------------|
|Nays:|Donnelly, Linder, Quirk |
| | |
--------------------------------
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
AB 1576
Page 2
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.
c) Each employee consented to disclosing to the Department
of Industrial Relations (DIR) that the employee was the
subject of a human immunodeficiency virus (HIV) test.
3)Makes conforming changes to existing law.
FISCAL EFFECT : According to the Assembly Appropriations
Committee:
1)Minor and absorbable costs to California Occupational Safety
and Health Administration (Cal/OSHA) as enforcement of the
bill's requirements will likely be on a complaint-driven
basis.
2)Special fund costs of up to $150,000 to the OSHA Standards
Board to the extent additional rulemaking is necessary.
According to DIR, Cal/OSHA held six advisory committee
meetings in the last few years to discuss the current
rulemaking project on this issue. This bill addresses complex
issues in medical surveillance which would require additional
advisory committee time and attorney time. Additionally DIR
notes that Cal/OSHA staff can only cite for regulations - not
statute - therefore the bill would require additional
rulemaking that is beyond the scope of the current project.
COMMENTS : The United States AFI produces 4,000 to 11,000 films
AB 1576
Page 3
and earns an estimated $9 to $13 billion in gross revenues
annually. California is the largest center for adult film
production worldwide, with an estimated 200 production companies
in Los Angeles which employ up to 1,500 workers.
According to the author, "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."
The bill's sponsors claim, "According to a Los Angeles
Department of Public Health study, 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 [sexually
transmitted disease], 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." Despite this, they state, "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 [sexually transmitted infections]
frequently."
The supporters and opponents have provided 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 HIV within the
community of adult performers raised the public profile of this
intra-industry issue, and have drawn the attention of various
regulatory bodies.
The state OSHA regulations covering occupational health and
AB 1576
Page 4
safety require employers to develop and implement an Illness and
Injury Prevention Program (IIPP), California Code of Regulations
Title 8 Section 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 IIPP. Many industries develop industry-wide IIPPs that
individual businesses can follow in good faith and be deemed in
compliance with the regulation.
The AFI's method for responding to outbreaks of STDs and HIV
among performers in the heterosexual segment of the industry is
voluntary STD and HIV testing.
Opposition to the measure is based upon three major themes. The
Free Speech Coalition (FSC) opposes based upon their belief that
the existing AFI 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. 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 further points 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 this bill. Counsel for
Vivid Entertainment, LLC brings up other potential
constitutional deficiencies, saying the provisions of this bill,
"Raise the same core constitutional (First and Fourth Amendment)
infirmities being addressed by the Ninth Circuit in Vivid
Entertainment, LLC v. Fielding et al. (The legal challenge
brought against Los Angeles Measure B, upon which this bill is
based). The additional requirement of a government mandated
testing program not only fails to alleviate these constitutional
concerns, but, in fact raises substantial additional ones."
(Constitutional issues are discussed further in the policy
committee analysis.)
Finally, economic harm is another line of opposition as
reflected by the comments of the Valley Industry and Commerce
Association, who oppose this measure based upon their belief
that, "This six billion dollar industry generates millions in
state and local tax revenues annually. Adult film production is
AB 1576
Page 5
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. These jobs have depleted since the passage of
Measure B, Los Angeles County's version of this legislation; a
statewide mandate will be the final straw."
The Arts, Entertainment, Sports, Tourism and Internet Media
Committee raised two additional considerations, one whether
there is a need for legislation given that draft AFI regulations
are currently pending before the OSHA Standards Board, and that
there may be a potential loophole created by having employees
covered under the bill, but not independent contractors.
Recent amendments not discussed in policy committee: mandated
test disclosure consent: Under this bill, AFI performers must
be, "tested for sexually transmitted infections according to
recommendations of the Centers for Disease Control [and
Prevention] and the State Department of Public Health current at
the time testing takes place?" Currently, the State Department
of Public Health recommended STD tests include, in addition to
HIV: syphilis, gonorrhea, chlamydia, herpes, genital warts,
(thin-prep with reflex HPV [human papillomavirus]), vaginosis,
trichomonas, hepatitis A, B & C. (California Department of
Public Health STD Screening Guidelines, accessed May 21, 2014).
The author recently amended this bill to require that employers
must provide OSHA with evidence that each employee consented to
the employer disclosing to DIR, "That the employee consented to
disclosing to the Department of Industrial Relations, that the
employee was the subject of a human immunodeficiency virus (HIV)
test."
The author asserts that this is not a mandated consent for the
release of the contents of the test results, but rather is
merely a necessary tool to allow sharing of information
necessary for the employer to comply with the exposure control
plan requirement of testing each performer 14 days prior to
filming. Opponents disagree, and claim the consent to release
the performer's test submission will be compelled along with the
taking of the test.
Assembly Arts, Entertainment, Sports, Tourism and Internet Media
AB 1576
Page 6
Committee staff is concerned this limited consent for release of
HIV testing, but not other STD tests, conflicts with the bill's
requirement of a broad panel of STD tests required of
performers, and could be read to narrow the testing protocol to
only apply to HIV. In addition, the juxtaposition of the
consent mandate with the requirement for the employer to pay for
"the test" could be read to limit the employer's duty to pay
only for the HIV test, and not the rest of the STD panel.
Should this measure move forward the author may wish to clarify
his intent on these points.
Please see the policy committee analysis for full discussion of
this bill.
Analysis Prepared by : Dana Mitchell / A.,E.,S.,T., & I.M. /
(916) 319-3450
FN: 0003547