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Get It Straight: Measure B & AB 332 Are NOT Just About Condoms

There's been a lot of online jackassery about this subject...

Get It Straight: Measure B & AB 332 Are NOT Just About Condoms

Note: What appears below is in large part an article I wrote back in October of last year regarding the fact that Measure B mandates not just that condoms be used on adult movie sets, but also rubber gloves, face shields, goggles, dental dams and, yes, hazardous materials (hazmat) suits. But because there seems to be some confusion about this subject, the article has been updated to show that AB 332, which is currently being considered by the California legislature, requires those same total body coverings for performers having sex on camera. Those who have already familiarized themselves with the following analysis of Measure B can skip directly to the "Update" regarding AB 332 below.

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LOS ANGELES — If one looks at the propaganda that's been floated over the internet during the past month or so, it's clear that some people, even members of the adult industry, don't have a clear understanding of what Measure B will require performers to wear during on-camera sex acts... so let's go right to the sources and see what the real story is.

Let's start with how the LA County Official Sample Ballot and Voting Instructions booklet describes Measure B: "Shall an ordinance be adopted requiring producers of adult films to obtain a County public health permit, to require adult film performers to use condoms while engaged in sex acts, to provide proof of blood borne pathogen training course, to post permit and notices to performers, and making violations of the ordinance subject to civil fines and criminal charges?"

Seems simple enough: Performers have to wear condoms while performing sex acts—and of course, that's true as far as it goes. But then, people who believe that's all there is to it haven't read Measure B in its entirety, and although there are many things wrong with the measure, the focus of this article is on condoms—and what the Official Sample Ballot says is a lie by omission—as is the "Official Title and Summary" of what's called the "County of Los Angeles Safer Sex in the Adult Film Industry Act," Measure B's proper name.

That summary says, in pertinent part, "The measure would require use of condoms for all acts of anal or vaginal sex during the production of adult films, as well as the posting of the public health permit and notice to performers regarding condom use." But is that statement supported by the full text of Measure B? No, it isn't.

If one reads further into the section titled "Text of the Proposed Measure," one finds that the measure would add Chapter 11.39 to Division 1 of Title 11 of the Los Angeles County Code, and under Section 11.39.050 of the Chapter, "Exposure control plan," we find the first mention of something that will form an important part of this discussion: California Code of Regulations, Title 8, Sec. 5193—but we'll get to that in a moment.

First, under Chapter 11.39's definitions, an "Exposure control plan" is defined as "a written plan that meets all requirements of Title 8 California Code of Regulations sections 3203 and 5193, to minimize employees' risk of exposure to blood or potentially infectious material," and that last phrase, Section 11.39.070 notes, "shall have the same meaning as defined in Title 8 California Code of Regulations Section 5193(b), or any successor regulation."

Now, Section 11.39.050 is important, because in order to obtain the public health permit required under Measure B, a production company must first provide to the LA County Department of Public Health proof of that company's "successful completing of a blood borne pathogen training course that has been approved by the department for all principals and management-level employees of permittee, including but not limited to all film directors." [Section 11.39.080(A)(2)]

According to Section 11.39.080, during the first year after Measure B has been enacted, production companies and individual producers will be issued a "conditional permit" and they will have "up to six months from the date of application to provide the department with proof of successful completion of a blood borne pathogen [BBP] training course that has been approved by the department." (Applicants applying after the first year must apparently present proof of their BBP training at the time they apply for the permit.) No problem so far, but wait:

Under Section 11.39.110, titled "Permit—Suspension and revocation and fines," it says, in pertinent part, "Any permit issued pursuant to this chapter may be suspended or revoked by the department and fines consistent with the provisions of this chapter may be imposed by the department for a violation of this chapter and any other violation of law creating a risk of exposing performers to sexually transmitted infections, including any violation of ... California Code of Regulations Title 8, section 5193 ... The notice to comply shall include a statement of the deficiencies found, set for the corrective measures necessary for the permittee to be in compliance with this chapter, and inform the permittee that failure to comply may result in the imposition of a fine or other penalty, including suspension and/or revocation of any and all permits."

So what does that mean, in simple terms? It means that if, upon inspection by the county health department, a producer is found to have been in violation of the laws and codes set forth in Section 11.39.110, including California Code of Regulations Title 8, Sec. 5193, the department can suspend or revoke that company's public health permit, and though a later paragraph of Sec. 11.39.110 allows the company to challenge that suspension, if the company fails to challenge it or fails to comply with, among other things, California Code of Regulations Title 8, Sec. 5193, that company's public health permit will be revoked or permanently suspended. And of course, a suspension or revocation of the public health permit means that the company may no longer shoot hardcore sex in Los Angeles County.

The entire "Official Title and Summary" of Measure B can be found here.

So, with all that in mind, let's see just what the requirements of California Code of Regulations Title 8, Sec. 5193 are.

Sec. 5193 is titled "Bloodborne Pathogens," which subsection (b) defines as "pathogenic microorganisms that are present in human blood and can cause disease in humans. These pathogens include, but are not limited to, hepatitis B virus (HBV), hepatitis C virus (HCV) and human immunodeficiency virus (HIV)." Exposure to such pathogenic microorganisms can be controlled by "decontamination" or by "engineering controls," and Sec. 5193 briefly describes how each of those preventative measures can be implemented. Of course, Sec. 5193 was enacted to deal with bloodborne pathogens in medical settings like hospitals, clinics and the like, so there's plenty of discussion of how to handle contaminated "sharps" like hypodermic needles, scalpels and other medical instruments.

And what could those instruments and other medical devices be contaminated with? Well, there's blood, of course, but there's also what are called "other potentially infectious materials," or OPIM for short. OPIM are defined in subsection (b) as, among other things, "[t]he following human body fluids: semen, vaginal secretions, cerebrospinal fluid, synovial fluid, pleural fluid, pericardial fluid, peritoneal fluid, amniotic fluid, saliva in dental procedures, any other body fluid that is visibly contaminated with blood such as saliva or vomitus, and all body fluids in situations where it is difficult or impossible to differentiate between body fluids such as emergency response." [Emphasis added]

And how is one to avoid contact with those fluids? Well, one way is with "Personal Protective Equipment," which is defined in subsection (b) as "specialized clothing or equipment worn or used by an employee for protection against a hazard." In addition, the definition warns that, "General work clothes (e.g., uniforms, pants, shirts or blouses) not intended to function as protection against a hazard are not considered to be personal protective equipment."

So, then, what "personal protective equipment" is required? Well, to find that out, one must scroll down to subsection (d) "Methods of Compliance," and under that, subsection (4), "Personal Protective Equipment."

Title 8, Sec. 5193(d)(4)(A), titled "Personal Protective Equipment," reads, "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 protection, and mouthpieces, resuscitation bags, pocket masks, or other ventilation devices. Personal protective equipment will be considered 'appropriate' only if it does not permit blood or OPIM to pass through to or reach the employee's work clothes, street clothes, undergarments, skin, eyes, mouth, or other mucous membranes under normal conditions of use and for the duration of time which the protective equipment will be used." [Emphasis added]

So let's sum up, then, shall we? Does Measure B require performers to use condoms? You bet it does! But because Measure B requires that, in order for companies to keep their public health permits, they must also follow all of the regulations of California Code of Regulations Title 8, Section 5193, performers on adult movie sets must also use "[latex] gloves, face shields or masks and eye protection [goggles]" and any other personal protective equipment (like, for instance, dental dams) that prevents the blood or OPIM from reaching an employee's "undergarments, skin, eyes, mouth or other mucous membranes" like their eyes or nose—and considering that most adult performers are nearly or completely naked when performing, about the only "personal protective equipment" that truly satisfies the requirements of Title 8, Sec. 5193 are hazardous material—or "hazmat"—suits like the ones pictured above.

Now, try making an adult movie with that requirement! If you need some help visualizing what such a movie might look like, go here.

(The text of California Code of Regulations Title 8, Section 5193 can be found here.)

UPDATE: It's sad that few in the adult industry, including some of its attorneys (and this blogger), have taken the time to actually read Measure B and Assembly Bill (AB) 332, or if they have done that, they have failed to do the necessary follow-up research to fully understand what (in the case of Measure B) was actually enacted into law, or in the case of AB 332, how closely its text mirrors the same flaws that Measure B has.

Of course, since AIDS Healthcare Foundation, the driving force behind (if not the actual author of) AB 332, has learned a few lessons from my coverage of its attempts to destroy the adult industry by legislating it to death, so for the most part, AB 332 is not as explicit as Measure B was about its invocation of California Code of Regulations Title 8, Section 5193—but a reading of AB 332's text makes it clear that Section 5193 applies just as broadly in the statewide bill as it does in Measure B.

Indeed, the first time AB 332 even mentions Section 5193 is in proposed new Section 6720(d) which states, "An employer shall maintain an exposure control plan in accordance with Section 5193 of Title 8 of the California Code of Regulations. An employer shall not be required to comply with any provision related to establishing and maintaining a sharps injury log."

Now, the elements of what must appear in an "exposure control plan" are set forth in Section 5193(c)(1)(B), the operative paragraph of which reads, "An effective procedure for identifying currently available engineering controls, and selecting such controls, where appropriate, for the procedures performed by employees in their respective work areas or departments."

Now of course, Section 5193 was not written with the adult industry in mind, but rather was intended for the employees of hospitals and other hands-on medical facilities, but the wording is still important since the phrase "engineering controls" is a "term of art" which is used throughout Section 5193, and is defined at the beginning of that section as "controls (e.g., sharps disposal containers, needleless systems and sharps with engineered sharps injury protection) that isolate or remove the bloodborne pathogens hazard from the workplace."

AB 332, as noted above, specifically exempts adult producers from the need to maintain a "sharps injury log," possibly for the simple reason that adult performers don't use hypodermic needles or any other sharp object while performing in adult movies. So let's remove the parenthetical that refers to the sharps in the definition of "engineering controls," and what we're left with is, "controls that isolate or remove the bloodborne pathogens hazard from the workplace." That is what is required to be in the employer's exposure control plan required in AB 332.

Now we get to skip on down to Sec. 5193(d)(4)(A) which, as noted above, deals with "Personal Protective Equipment." Note that this too refers to "engineering controls"—"Where occupational exposure remains after institution of engineering and work practice controls"—then goes on to require the employer to "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 protection, and mouthpieces, resuscitation bags, pocket masks, or other ventilation devices. Personal protective equipment will be considered 'appropriate' only if it does not permit blood or OPIM to pass through to or reach the employee's work clothes, street clothes, undergarments, skin, eyes, mouth, or other mucous membranes under normal conditions of use and for the duration of time which the protective equipment will be used." [Emphasis added]

See, part of the Employer's Exposure Control Plan (which the government insists that employers not only create but follow) requires the use of "engineering controls," but if those don't completely solve the problem of "isolat[ing] or remov[ing] the bloodborne pathogens hazard from the workplace," then the employer must provide all of the eye, skin and mucous membrane protections required under the "Personal Protective Equipment" section of Section 5193—and that includes equipment that "does not permit blood or OPIM [Other Potentially Infectious Materials] to pass through to or reach the employee's ... skin, eyes, mouth, or other mucous membranes under normal conditions of use and for the duration of time which the protective equipment will be used."

In other words, it requires hazmat suits.

It isn't until proposed Section 6720(h)(1) that AB 332 requires an employer to "adopt, implement, maintain, and update, as required, a written health and safety program approved by the department and that meets the requirements of the Injury and Illness Prevention Program and the bloodborne pathogens standard, described, respectively, in Sections 3203 and 5193 of Title 8 of the California Code of Regulations." [Emphasis added]

Now, according to Section 5193's "bloodborne pathogen standard," "bloodborne pathogens" are defined as "pathogenic microorganisms that are present in human blood and can cause disease in humans. These pathogens include, but are not limited to, hepatitis B virus (HBV), hepatitis C virus (HCV) and human immunodeficiency virus (HIV)." And sure enough, it's those bloodborne pathogens which the above-noted required "personal protective equipment" is required to protect performers and other on-set personnel against contact with!

Finally, AB 332's proposed Section 6720(h)(2) requires that all employees be trained, at the employer's expense, in "department-approved... health and safety"—and again, we're back to the required exposure control plan, which incorporates a bloodborne pathogens plan—and that requires all the "engineering controls" and "personal protective equipment" detailed in Section 5193.

As a member of the Free Speech Coalition, I lament the widespread ignorance that allowed Measure B to pass, and which is allowing both free sexual speech advocates and AIDS Healthcare supporters to refer to AB 332 as a "mandatory condom bill." As has been explained above, AB 332 is much more than that, and henceforth, I will be referring to both the Measure B ordinance and AB 332 as "mandatory hazmat suit" laws—because that's exactly what they are!






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