BILL ANALYSIS                                                                                                                                                                                                    Ó



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          ASSEMBLY THIRD READING


          AJR  
          16 (Eduardo Garcia, et al.)


          As Amended  June 8, 2015


          Majority vote


           ------------------------------------------------------------------ 
          |Committee       |Votes|Ayes                  |Noes                |
          |                |     |                      |                    |
          |                |     |                      |                    |
          |                |     |                      |                    |
          |----------------+-----+----------------------+--------------------|
          |Judiciary       |8-2  |Mark Stone, Alejo,    |Wagner, Gallagher   |
          |                |     |Chau, Chiu, Cristina  |                    |
          |                |     |Garcia, Holden,       |                    |
          |                |     |Maienschein,          |                    |
          |                |     |O'Donnell             |                    |
          |                |     |                      |                    |
          |                |     |                      |                    |
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          SUMMARY:  Requests the President and the Department of Health  
          and Human Services (HHS) to adopt science-based policies that  
          repeal current Food and Drug Administration (FDA) policies that  
          prohibit men who have had sex with men from donating blood.   
          Specifically, this resolution, among other things:   


          1)Finds that, since 1983, FDA policy has prohibited the donation  
            of blood by any man who has had sex with another man (MSM) at  
            any time since 1977.








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          2)Finds that in December 2014, based on recommendations from the  
            HHS Advisory Committee on Blood and Tissue Safety and  
            Availability, the FDA announced its intent to promulgate  
            regulations to allow an MSM to donate blood only if he has not  
            been sexually active for the past 12 months.


          3)Further declares that despite these recent steps toward a  
            policy change, a double standard would still exist under the  
            policy as it is proposed to be revised because it would still  
            treat gay and bisexual men differently from heterosexual men.


          4)Finds that the FDA does not allow gay and bisexual men in  
            committed relationships to donate blood because, while one  
            partner may be monogamous, that individual cannot guarantee  
            that the other partner is monogamous.  The FDA does not apply  
            this same logic to heterosexual relationships, which in effect  
            discriminates against gay and bisexual men.


          5)Finds that a 12-month deferral policy for gay and bisexual men  
            to donate blood is overly stringent given the scientific  
            evidence, advanced testing methods, and the safety and quality  
            control measures in place within the different FDA-qualified  
            blood donating centers.  The technology can identify within  
            seven to 10 days with 99.9% accuracy whether or not a blood  
            sample is human immunodeficiency virus (HIV)-positive, and the  
            chance of the blood test being inaccurate within the 10-day  
            window is about one in 2 million.


          6)Finds that, according to the Williams Institute of the  
            University of California at Los Angeles School of Law, based  
            on the population of eligible and likely donors among the MSM  
            community, lifting the federal lifetime deferral policy on  
            blood donation by an MSM would result in 4.2 million newly  
            eligible male donors, of which 360,600 would likely donate,  
            generating 615,300 additional pints of blood.  Further finds  








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            that, lifting the ban on MSM blood donations would likely add  
            an additional 510,000 eligible men to the current blood donor  
            pool, of which 43,917 would likely donate, resulting in an  
            additional 74,945 donated pints in California.


          7)Calls upon the President to encourage, and the Secretary of  
            the HHS to adopt policies to repeal the current and upcoming  
            discriminatory donor suitability policies of the FDA regarding  
            blood donations by men who have had sex with another man and,  
            instead, direct the FDA to develop science-based policies such  
            as criteria based on risky behavior in lieu of sexual  
            orientation.


          FISCAL EFFECT:  None


          COMMENTS:  This resolution, sponsored by Equality California,  
          respectfully requests the President and the HHS to adopt  
          policies that repeal current FDA policies prohibiting men who  
          have had sex with men from donating blood.  The author believes  
          that the current FDA policy is unnecessary given improvements in  
          donor screening techniques, and that it operates in an unfair  
          and discriminatory manner against homosexual men as a group  
          because of their status, without regard to whether screening of  
          individual donors indicates any risk of transmitting disease via  
          blood transfusion.


          Origin of the FDA Policy of Lifetime Donor Deferral for MSM.   
          According to the FDA, MSM at any time since 1977 are deferred as  
          blood donors because, as a group, MSM are at increased risk for  
          HIV, hepatitis B, and other infections that can be transmitted  
          by blood transfusion.  The year 1977 was chosen because it  
          marked the beginning of the acquired immune deficiency syndrome  
          (AIDS) epidemic in the United States.  Although the FDA policy  
          uses the term "deferral," the policy in effect acts to prohibit,  
          in all cases, men who have had sex with men since 1977 from  








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          donating blood.


          According to the FDA Web site, the primary responsibility of the  
          agency is to enhance blood safety and protect blood recipients,  
          and its MSM deferral policy is intended to protect all people  
          who receive blood transfusions from an increased risk of  
          exposure to blood potentially infected with certain  
          disease-causing agents, including HIV, the virus that causes  
          AIDS.  The FDA has previously stated that it would change its  
          MSM deferral policy "only if supported by scientific data  
          showing that a change in policy would not present a significant  
          and preventable risk to blood recipients."   
          (http://www.fda.gov/BiologicsBloodVaccines/BloodBloodProducts/  
          QuestionsaboutBlood/ucm108186.htm.)


          For Many Years, the FDA Has Declined to Change its MSM Deferral  
          Policy.  On March 8, 2006, the FDA conducted a workshop entitled  
          "Behavior-Based Donor Deferrals in the Nucleic Acid Test (NAT)  
          Era."  At that workshop, three major blood collection agencies  
          (the American Red Cross (ARC), the American Association for  
          Blood Banks (AABB), and America's Blood Centers (ABC)) testified  
          before the FDA's Blood Products Advisory Committee.  These  
          organizations recommended that the deferral period for MSM be  
          changed to 12 months after last sexual contact, which would make  
          this consistent with the deferral periods for other potentially  
          high risk sexual exposures.  Except during the window period  
          right after infection, the agencies stated that there is no  
          valid scientific reason to differentiate between individuals  
          infected a few months or many years previously.  Furthermore,  
          the agencies cited new evidence showing that the vast majority  
          of donors with prevalent HIV infection will test positive by  
          both serologic testing and the NAT method, thus assuring  
          redundancy in laboratory screening that all donated blood  
          undergoes.  As a result, according to the agencies, the risk to  
          recipients posed by false negative screening in the laboratory  
          is minimal.









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          According to the blood collection agencies, the proper  
          scientific basis for FDA's policy specifying deferral periods  
          for certain at-risk sexual behaviors should be the length of  
          window periods for laboratory testing, not the initial mode or  
          time of HIV infection (unless the infection is so recent as to  
          have occurred within the critical window period).  The agencies  
          argue that the proper focus of the screening questions should be  
          on recent risk history of possible infection, particularly as  
          that interacts with the window period for lab testing methods,  
          and they point out that this is already true for many other  
          screening questions not related to MSMs.


          Following the 2006 workshop, however, the FDA disagreed with the  
          scientific positions of the blood collection agencies and  
          declined to change its deferral policy for MSMs, stating on its  
          Web site, "Scientific evidence has not yet been provided to FDA  
          that shows that blood donated by MSM or a subgroup of these  
          potential donors, is as safe as blood from currently accepted  
          donors.  FDA remains willing to consider new approaches to donor  
          screening and testing, provided those approaches assure that  
          blood recipients are not placed at an increased risk of HIV or  
          other transfusion transmitted diseases."


          Subsequently, the Legislature has twice passed resolutions  
          calling for the FDA to repeal the lifetime deferral policy for  
          MSM and adopt policies based on the most current science: AJR 13  
          (Ammiano), Resolution Chapter 164, Statutes of 2010, and AJR 50  
          (Bloom), Resolution Chapter 170, Statutes of 2014.


          Recent Announcement of Proposed Change: 12-month deferral for  
          MSM.  On December 23, 2014, the FDA announced that it would  
          recommend changing the donor deferral period for MSM from a  
          lifetime deferral to a period of one year after last sexual  
          contact, and would issue a draft guidance recommending this  
          proposed change in 2015, including an opportunity for public  








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          comment.  Subsequently, in May 2015, the FDA issued its draft  
          guidance document, titled "Revised Recommendations for Reducing  
          the Risk of Human Immunodeficiency Virus Transmission by Blood  
          and Blood Products."  The document reviews recent data relevant  
          to the FDA's decision on the deferral policy for MSM and  
          contains nonbinding recommendations to entities that collect  
          blood donations, including the recommendation of deferral for 12  
          months after the most recent contact of any man who has had sex  
          with another man during the past 12 months, or any female who  
          has had sex during the past 12 months with a men who has had sex  
          with another man.


          Proposed 12-Month Deferral Policy for MSM Treats Homosexual and  
          Heterosexual Donors Differently Without Regard to Individual  
          Levels of Risk.  Under the proposed FDA policy, potential blood  
          donors are judged to be at risk for exposure because they have  
          had any sex whatsoever with another man in the previous 12  
          months, while men who have had heterosexual sexual contact in  
          the past 12 months are not necessarily deferred (as long as the  
          heterosexual partner did not have other risk factors).  For  
          example, under the proposed FDA policy, a sexually active gay  
          man is barred from donating, even if he has had only one sexual  
          partner, has protected sex, and has not been exposed to HIV.  On  
          the other hand, the proposed policy still allows sexually active  
          heterosexual men and women who may have been exposed to HIV to  
          donate, although after a deferral period of 12 months in some  
          cases.  The only way a sexually active gay man can donate blood  
          under the proposed policy is apparently to abstain from sex for  
          12 months prior to donation, which critics of the proposed  
          policy contend is an unfair standard that is not applied to  
          heterosexual monogamous relationships.  


          According to the FDA guidance document, however, the proposed  
          policy is scientifically justified.  The guidance document  
          states:  "Available epidemiologic data in the published  
          literature do not support the concept that [men who have sex  
          with men] who report mutual monogamy with a partner or who  








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          report routine use of safe sex practices are at low risk for  
          HIV. Specifically, the rate of partner infidelity in ostensibly  
          monogamous heterosexual couples and same-sex male couples is  
          estimated to be about 25%, and condom use is associated with a  
          1% to 2% failure rate per episode of anal intercourse."


          Recent media reports indicate that many lesbian, gay, bisexual,  
          and transgender (LGBT) advocates share the author and sponsor's  
          concerns about the proposed policy.  For example, David Stacy,  
          director of government affairs at the Human Rights Campaign  
          (HRC), has stated that, "While the new policy is a step in the  
          right direction toward an ideal policy that reflects the best  
          scientific research, it still falls far short of a fully  
          acceptable solution because it continues to stigmatize gay and  
          bisexual men.  This policy prevents men from donating  
          life-saving blood based solely on their sexual orientation  
          rather than actual risk to the blood supply.  It simply cannot  
          be justified in light of current scientific research and updated  
          blood screening technology."  ("FDA Blood Ban Donation Still  
          Unacceptable," available at:  
           http://www.hrc.org/blog/entry/fda-blood-donation-ban-change-still 
          -unacceptable .)


          The author contends that the proposed policy unnecessarily  
          limits the pool of potential blood donors in California who  
          could safely donate given today's screening technology and  
          procedures.  Proponents state that, according to estimates by  
          the Williams Institute of the University of California at Los  
          Angeles School of Law, lifting the ban on MSM blood donations  
          would add an additional 510,000 eligible men to the current  
          blood donor pool in California alone, of which 43,917 would  
          likely donate, resulting in an additional 74,945 donated pints  
          of blood in this state.


          In summary, the author and sponsor contend the proposed deferral  
          policy is still not justified in differentiating sexual  








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          transmission via male-to-male sexual activity from that via  
          heterosexual activity.  In addition, the measure finds and  
          declares that a 12-month deferral policy for gay and bisexual  
          men to donate blood is overly stringent given the scientific  
          evidence, advanced testing methods, and the safety and quality  
          control measures in place within the different FDA-qualified  
          blood donating centers.  Instead, proponents favor a policy that  
          takes into account the individual risk factors associated with  
          the sexual activity of a potential donor, regardless of his  
          sexual orientation, and believe that such a policy would reflect  
          the spirit, if not the letter, of state anti-discrimination  
          laws, while reflecting sound scientific principles.  




          Analysis Prepared by:                                             
          Anthony Lew / JUD. / (916) 319-2334  FN: 0000946