BILL ANALYSIS                                                                                                                                                                                                    Ó



          SENATE COMMITTEE ON HEALTH
                          Senator Ed Hernandez, O.D., Chair

          BILL NO:                    AJR 16    
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          |AUTHOR:        |Eduardo Garcia                                 |
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          |VERSION:       |June 25, 2015                                  |
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          |HEARING DATE:  |July 15, 2015  |               |               |
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          |CONSULTANT:    |Reyes Diaz                                     |
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           SUBJECT  :  Blood donations.

           SUMMARY  :  Requests the President and the U.S. Department of Health and  
          Human Services to adopt science-based policies that repeal  
          current U.S. Food and Drug Administration policies that prohibit  
          men who have had sex with men from donating blood.

          Existing law:
          1)Pursuant to U.S. Food and Drug Administration (FDA) blood  
            donation policies regarding screening and deferral of  
            potential donors:


                  a)        Requires that potential donors are informed  
                    about the risk of transmitting infectious diseases  
                    through blood donation;
                  b)        Requires potential donors to be asked  
                    screening questions about their health status, health  
                    behaviors, and other factors that are associated with  
                    an increased risk of being infected with transmissible  
                    disease, in order to help persons identify themselves  
                    as potentially at higher risk for transmitting  
                    infectious diseases and defer from donating on their  
                    own accord, rather than unknowingly donating blood  
                    that may be infected;
                  c)        Requires that the minimum information  
                    presented to potential donors at every visit indicate  
                    clearly that persons meeting certain criteria should  
                    not donate blood, including, but not limited to, men  
                    who have had sex with other men (MSM) even one time  
                    since 1977; and
                  d)        Prohibits blood donation establishments from  
                    allowing MSM, even one time since 1977, to donate  







          AJR 16 (Eduardo Garcia)                           Page 2 of ?
          
          
                    blood, even when such a donor does not wish to  
                    self-defer.  

          2)Provides that all persons within the jurisdiction of this  
            state are free and equal. Prohibits discrimination based on  
            sex, race, color, religion, ancestry, national origin,  
            disability, medical condition, marital status, or sexual  
            orientation with respect to accommodations, advantages,  
            facilities, privileges, or services in all business  
            establishments of every kind.  


          This measure:
          1)Finds that, since 1983, the FDA has prohibited blood donation  
            by MSM at any time since 1977.

          2)Finds that in December 2014, based on recommendations from the  
            U.S. Department of Health and Human Services (USHHS) Advisory  
            Committee on Blood and Tissue Safety and Availability, the FDA  
            announced its intent to promulgate regulations to allow MSM to  
            donate blood only if he has not been sexually active for the  
            past 12 months. Declares that a double standard still exits  
            under this proposed policy because it still treats gay and  
            bisexual men differently from heterosexual men.

          3)Declares that California law prohibits discrimination against  
            individuals on the basis of actual or perceived sex, sexual  
            orientation, gender identity, and gender-related appearance  
            and behavior.

          4)Finds that Spain, Italy, Russia, Mexico, and Portugal have  
            adopted blood donor policies that measure risk against a set  
            of behaviors, sexual and otherwise, rather than the sex of a  
            person's sexual partner or partners.

          5)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. Declares that the FDA  
            does not apply this same logic to heterosexual relationships,  
            which in effect discriminates against gay and bisexual men.

          6)Finds that a 12-month deferral policy for gay and bisexual men  
            to donate blood is overly stringent given scientific evidence,  
            advanced testing methods, and safety and quality control  








          AJR 16 (Eduardo Garcia)                           Page 3 of ?
          
          
            measures in place within the different FDA-qualified blood  
            donating centers. Declares that technology can identify within  
            seven to 10 days with 99.9% accuracy whether or not a blood  
            sample is HIV-positive, and the chance of the blood testing  
            being inaccurate within the 10-day window is about 1 in  
            2,000,000.

          7)Finds that the General Social Survey conducted by NORC at the  
            University of Chicago estimates that 8.5% of men in the U.S.  
            have had at least one male sexual partner since 18 years of  
            age; 4.1% report at least one male sexual partner in the last  
            five years; and 3.8% report a male sex partner in the last 12  
            months.

          8)Finds that an estimated 45.4% of men (or 54 million) in the  
            U.S. are eligible to donate blood, but only 8.7% actually do.  
            Declares that there are 15.7 million donations of blood per  
            year made by 9.2 million donors, yielding approximately 1.7  
            donations per donor.

          9)Finds that the Williams Institute (Institute) of the  
            University of California at Los Angeles School of Law  
            estimates that, based on the population of eligible and likely  
            donors among the MSM community, lifting the federal lifetime  
            deferral policy on blood donations 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.

          10)Finds that applying national estimates to the California  
            population, the Institute further estimates that lifting the  
            ban on MSM blood donations would 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.  

          11)Calls upon the President of the U.S. to encourage the USHHS  
            Secretary to adopt policies to repeal the current and upcoming  
            discriminatory donor suitability policies of the FDA regarding  
            blood donations by MSM and, instead, direct the FDA to develop  
            science-based policies, such as criteria based on risky  
            behavior in lieu of sexual orientation.

          12)Requests the Chief Clerk of the Assembly to transmit copies  
            of this resolution to the President and the Vice President of  
            the U.S., to the USHHS Secretary, to the Speaker of the House  








          AJR 16 (Eduardo Garcia)                           Page 4 of ?
          
          
            of Representatives, to the Majority Leader of the Senate, and  
            to each Senator and Representative from California in the U.S.  
            Congress.
           PRIOR  
          VOTES  :  
          
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          |Assembly Floor:                     |62 - 6                      |
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          |Assembly Judiciary Committee:       |8 - 2                       |
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           COMMENTS  :
          1)Author's statement. According to the author, this measure  
            would call upon the President of the U.S. to encourage the  
            USHHS Secretary to adopt policies to repeal the current and  
            upcoming discriminatory donor suitability policies of the FDA  
            regarding blood donations by MSM and, instead, direct the FDA  
            to develop science-based policies, such as criteria based on  
            risky behavior in lieu of sexual orientation.

          2)Background. Blood banks now test donated blood by both  
            serologic (antibody) testing and the more recently developed  
            nucleic acid test method before the blood can be used in a  
            transfusion or contaminate other blood supplies. Both methods  
            allow detection of HIV-infected donors between 10 and 21 days  
            after exposure. When blood testing may not be able to detect  
            low levels of HIV is known as the critical window period. 

            According to the FDA, any man who has had sex with another man  
            even once since 1977 has been deferred as a blood donor  
            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 AIDS epidemic in the U.S.  Although the  
            FDA policy uses the term "deferral," the policy in effect acts  
            to prohibit, in all cases, any man who has had sex with  
            another man even once since 1977 from donating blood. The FDA  
            has had a donor deferral policy for MSM since 1983, when the  
            risk of AIDS from transfusion was first recognized. 

            On April 23, 1992, the FDA issued a memorandum to all blood  
            donation establishments, titled "Revised Recommendations for  
            the Prevention of HIV Transmission by Blood and Blood  








          AJR 16 (Eduardo Garcia)                           Page 5 of ?
          
          
            Products," to those in the regulated community to provide  
            guidance and more detailed instruction on how to comply with  
            federal law and regulations. The specific rules in such a  
            memorandum can and often do have the effect of agency policy.  
            In this case, the current FDA policy deferring blood donation  
            by MSM traces back to that 1992 memorandum and has remained in  
            effect ever since. The FDA has 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. 

          3)Recent Announcement of Proposed Change. 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 comment.  In the announcement, the  
            FDA states that over the past several years, in collaboration  
            with other government agencies, the FDA has carefully examined  
            and considered the available scientific evidence relevant to  
            its blood donor deferral policy for MSM, including the results  
            of several recently completed scientific studies and recent  
            epidemiologic data. Following this review, and taking into  
            account the recommendations of advisory committees to the  
            USHHS and the FDA, the agency will take the necessary steps to  
            recommend a change to the blood donor deferral period for MSM  
            from indefinite deferral to one year since the last sexual  
            contact. This recommended change is consistent with the  
            recommendation of an independent expert advisory panel of the  
            HHS Advisory Committee on Blood and Tissue Safety and  
            Availability, and will align the deferral period with that of  
            other men and women at increased risk for HIV infection. 

            In May 2015, the FDA issued its draft guidance document,  
            titled "Revised Recommendations for Reducing the Risk of HIV  
            Transmission by Blood and Blood Products."  The document  
            contains nonbinding recommendations to entities that collect  
            blood donations, including the recommendation of deferral for  
            12 months after the most recent contact of any MSM during the  
            past 12 months, or any female who has had sex during the past  
            12 months with an MSM.

          4)Support.  Equality California (EQCA), the sponsor, argues that  
            medical organizations like the American Red Cross, the  
            American Association for Blood Banks, America's Blood Centers,  








          AJR 16 (Eduardo Garcia)                           Page 6 of ?
          
          
            and the American Medical Association have called for a  
            reevaluation and/or repeal of FDA's existing and proposed new  
            policy, citing its excessively broad nature and advances in  
            blood testing. EQCA also argues that the FDA policy creates  
            stigma without any justifiable public health imperative and  
            results in negative attitudes to blood donor eligibility  
            criteria and in blood collection facilities. EQCA further  
            states that the proposed new FDA blood donor guidelines  
            continue to discriminate against MSM.
          
           SUPPORT AND OPPOSITION  :
          Support:  Equality California (sponsor)
          
          Oppose:   None received.
          



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