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Medical Experts Weigh in on Proposed Cal/OSHA Regulations

Medical Experts Weigh in on Proposed Cal/OSHA Regulations

OAKLAND, Calif.—"We are not in a formal rulemaking mode," Cal/OSHA Senior Safety Engineer Deborah Gold reminded the roughly 30 panelists and attendees at the agency's third committee meeting to discuss AIDS Healthcare Foundation's petition to force adult performers in California to wear "barrier protection" (condoms, dental dams, possibly goggles) during sex scenes.

Tuesday's meeting, held at Cal/OSHA's Oakland offices, was of the Bloodborne Pathogens in the Adult Film Industry Committee's medical subcommittee. Present besides Gold, who acted as moderator, were Cal/OSHA High Hazard Unit District Manager Peter Riley and attorney Amy Martin; nurse Denise Bleak; Frank Strona, chief of the STD/HIV Unit of the San Francisco Centers for Disease Control (CDC); Dr. Gail Bolan, chief of the California Department of Health Services' STD Control Branch; Dr. Shilpa Sayana, an HIV specialist and clinician at AIDS Healthcare Foundation; Dr. Aaron Aronow, associate clinical professor of neurology and internal medicine at the USC School of Medicine and an adjunct professor at the UCLA School of Public Health; and Dr. Peter Kerndt, director of the L.A. County Department of Public Health's STD Program. Also present by phone were Dr. John Brooks of the CDC in Atlanta, and Dr. Bruce Bernard of the CDC's National Institute of Occupational Safety and Health.

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According to the meeting's agenda, topics for the day's discussion were essentially identification of the various sexually transmitted diseases and other "blood borne pathogens" that could be transmitted to adult industry performers should they come in contact with blood or "other potentially infectious material" (OPIM) while making an adult movie; how "at risk" the performers were from various sex acts either while using "barrier protection" or without it; and what prophylactic measures are being or could be taken in addition to condoms, dental dams, etc. to prevent the spread of the pathogens and STDs.

And if all of that sounds as though it could easily have taken place during a mid-level course in medical school, rest assured, a good portion of the non-panelist attendees thought so as well.

Of course, as Gold reminded everyone present, "barrier protection" for adult actors, which Cal/OSHA considers to be "employees" of the production companies that create the movies in which they perform, is already the law in California, and the purpose of the committee and its subcommittees has been to discuss what if any alternatives exist to the use of "barriers" that are just as effective as the barriers themselves, because "Cal/OSHA can't go below the level of federal protection" required for similar activities, Gold said.

The discussion began by identifying which sexual acts pose the highest risk of infection, and all panelists agreed that that would be "receptive anal sex," with "receptive vaginal sex" running a close second—but that's about all the two sides could agree on.

Most of the controversy centered around cock-in-mouth oral sex, though pussy-licking was brought up later. Part of the discussion at the previous meeting involved the question of whether STDs could be transmitted simply by sucking a cock, and since then, Bleak had done a media search and come up with a number of studies—most notably one from 2007 by Maura Gillison at Johns Hopkins Bloomberg School of Public Health, which found a link between oral sex and throat cancer caused by HPV.

Dr. Kerndt was quick to seize on the concept to support his view that condoms (and, presumably, dental dams) should be required for all oral sex acts (if they aren't already; there seemed to be some confusion about that), and further suggested that it would be good if the industry eliminated all A2M—a practice he said could be "easily changed."

Dr. Aronow was quick to point out that thanks to AIM's protocols, there hadn't been a single on-set transmission of HIV within the performer community since the Darren James incident in 2004, as well as low transmission rates of other STDs, but one of the attendees from UCLA's Reproductive Health Interest Group, Mark Roy McGrath, claimed that since AIM doesn't test for every possible STD, Dr. Aronow couldn't know whether transmission rates were indeed low. (In fact, AIM does test for all of the most common STDs.) Gold also noted that AIM doesn't follow up with performers who have retired to see if they had developed infections after leaving the industry.

In any case, it came out later that Cal/OSHA can't force employees (performers) to have any STD testing; it can only require that employers offer such testing to employees, which they theoretically can have done or not—all at the employer's expense.

That, of course, was another can of worms that (thankfully) wasn't explored at this meeting, though at least two participants, Drs. Kerndt and Sayana, recommended that AIM be prohibited from "monopolizing" testing within the industry, and it's been rumored that both AIDS Healthcare and the L.A. County Health Department would both like to get in on what they see as the lucrative porn performer testing market. And the likelihood that the cost of such testing would skyrocket if employers were required to pay for it approaches 100 percent.

But after about an hour of discussing "the porn industry," Strona—apparently a familiar name to Bay Area performers and producers—spoke up to note that there are big differences between the straight side of the industry and the gay side, and that since gay performers generally are not tested for STDs, AIM's statistics on STD rates within "the industry" probably only reflect those on the straight side.

Strona also highlighted the fact that many performers come to the Bay Area to shoot for a day or two and then return to their home cities, so that getting them tested before their scheduled sex scenes, and developing statistics on their STD infection rates, posed considerable problems. He also noted that not all producers operate as regular business concerns, and that producers who take care to remain "off the grid"—having no fixed business address and shooting scenes in out-of-the-way locations—would pose a problem for statistical modeling and/or Cal/OSHA enforcement, though he did note that most of the gay studios with which he was familiar require condoms to be used during sex scenes.

Bareback videos were briefly discussed, with several of the physicians noting that even though some of those studios engage in "sero-sorting"—that is, they allow HIV-positive performers to work together without condoms—in fact, it is possible for an HIV-positive individual to contract a second strain of the virus under those conditions. Dr. Bolan also advised that even if a performer has an undetectable viral load through blood testing, the amount of virus in the person's "genital secretions" may be much higher.

Hot House Entertainment owner Steve Scarborough spoke up to say that he doesn't even want to know the HIV status of his performers, and that's why he requires condoms for all his shoots. Strona added that a good percentage of the gays with whom he has contact don't even discuss their HIV status with their partners, to which Dr. Brooks further added that his studies have shown that as many as half of Americans who are HIV-positive nonetheless have unprotected sex.

Occasionally, the attendees' general ignorance of the adult industry came out, such as when RHIG's Christina Rodriguez-Hart claimed that the line between straight and gay in porn is being "blurred," that there isn't much difference between performers having anal sex with gay men or straight women, and that "barebacking is predominant" in gay movies currently being produced.

Scarborough immediately took issue with that last statement, though he admitted that bareback videos are on the increase, and he also pointed out that, contrary to previous statements, there are virtually no instances where male performers work in both gay and straight videos.

Since the agenda called for the panel's recommendations regarding what protective measures—vaccinations, pre-performance STD screening and post-exposure follow-up—should be taken in situations where barrier protection was required versus situations where barriers were not used, it often was difficult to tell just which situation was being discussed. All panelists felt that anti-hepatitis vaccinations were a must, but split over whether all performers should also receive the new anti-HPV vaccines.

Dr. Bolan noted, and Dr. Brooks agreed, that according to the CDC, vaccinations were only recommended for females aged 9 to 26, and Dr. Bolan claimed that any woman who'd had more than four sexual partners had undoubtedly already been exposed to at least one strain of HPV. The question also arose whether men should receive the anti-HPV vaccines as well, but no one had a definitive answer. Dr. Aronow recommended pre-screening performers for HPV and hepatitis B so as to avoid unnecessary vaccination—which in any case he felt should not be "required," but only "highly recommended."

In general, the panel thought that if condoms and other barriers were being used during sex scenes, there was little use for regular testing programs like AIM's, but both Dr. Aronow and Dr. Kerndt disagreed, saying that such testing was at least useful to monitor the STD infection rates within the performer community.

"Repeated screening in a high risk population ... is beneficial," Dr. Kerndt later declared.

Most of the afternoon's discussion was centered around whether condoms (and dental dams) should be required for oral sex—it was apparently understood that the panelists favored condoms for anal and vaginal sex—but even after two hours, no conclusion was reached. Most seemed to lean toward not requiring condoms for cocksucking, but Bleak pointed out that she'd seen a study that had found the HIV virus even in pre-cum, and Dr. Kerndt referenced a report from the late '90s that detailed several reports of HIV transmission through various oral sex acts.

Free Speech Coalition attorney Kevin Bland then asked the panel if there were any way to quantify how much risk there was to performing oral sex with a condom versus without, but no one had an answer for that, in large part because few studies had been done, and none that focused on either the porn performer or sex worker communities, which led Dr. Brooks to conclude, "In this context, we don't know what their risk is."

Dr. Bolan agreed that there were too many variables to come to a definitive conclusion, but that oral "is a much lower risk for transmission of STDs."

"When in doubt," she wisely counseled, "maybe we should try to collect some data ... and then make a decision."

"The risk [without ejaculation] is low," Dr. Brooks agreed, adding later that he'd never heard of an HIV transmission by oral sex during the virus's "eclipse period," which he defined as five to nine days after initial infection ... but brought up the question of transmission rates through cunnilingus. Dr. Kerndt said he'd seen one such report, but no one else had any data ... or apparently any opinion on the subject. Scarborough noted that, looking back on his years as a producer of gay videos, the risk of STD transmission by oral sex is "low or very low."

Bleak brought up the issue of gonorrhea transmission via oral, noting that she'd seen many gonorrheal infections of the throat during her clinic duties. Dr. Aronow stated that he'd seen a 50 percent drop in both gonorrhea and chlamydia infections over the past five years of AIM testing. However, Dr. Kerndt stated that 20 to 25 percent of performers were reinfected with the diseases within a year, and claimed that "the [infection] rates are many times higher" than Dr. Aronow had reported, and that "the risk is significant and ongoing."

Dr. Bolan disagreed, noting that the reinfection rates among performers that Dr. Kerndt had quoted were the same reinfection rates that the CDC had seen among teenage girls in general around the country.

To emphasize how low performer infection rates are, Dr. Aronow quoted AIM statistics, revealing that over five years beginning in 2004, AIM had seen just 1,152 cases of gonorrhea in the performer community out of 71,755 tests performed, and just 1,797 cases of chlamydia out of 71,823 total tests. However, he supported the concept of more frequent testing—possibly every two weeks—which would "capture more infections early on."

But when Gold asked if the assembled experts agreed that the discussion so far had indicated that "there seems to be a consensus" that STD transmission by penile oral sex without ejaculation was "among the lowest risk," Dr. Kerndt countered there were several STDs that could possibly be transmitted by oral sex that AIM generally doesn't test for, implying that condoms should be required for all oral sex acts. He also took a swipe at AIM's practice of allowing adult producers access to performers' test results, and when reminded that the performers voluntarily consented to have their health information revealed, he charged, "Even though they sign a consent, it's coercive: You work or you don't" based on the test results.

So ... were any conclusions reached after more than four hours of discussion? This reporter couldn't tell, although it became pretty clear which "experts" were adamantly in favor of mandatory condom/dental dam/goggle use and which were more open-minded.

However, the next committee meeting, scheduled for Oct. 25 in Oakland, is promised to be a more comprehensive look at the situation, and at that time, Free Speech Coalition will be allowed to finish its presentation of its proposed Health Code regulations for the adult industry which was cut short at a previous meeting in mid-August.

So mark your calendars now; it may be the adult industry's last chance to convince the committee that its current health practices are doing a reasonably good job of protecting performers.






Related Content:

Hot House Entertainment Inc.
Steven Scarborough
Mark Kernes

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