LOS ANGELES—Lost in the fallout of the shelving of AB 332, the Sacramento bill that would force adult performers throughout the state of California to don condoms and other barrier protection, is the fact that both AB 332 and its localized Los Angeles cousin, Measure B, are at the end of the day appendages to California Code of Regulation section 5193, which lays out in minute detail the actions that must be taken by any California business (with the sole exception of the construction industry) where the exchange of bodily fluids is a possibility.
It is from this set of regulations that the specifics of the types of barrier protection that would be required on adult sets are derived. The requirements are not vague or confusing, and leave little wriggle room to get around the obligations placed on employers, but more to the point, they are not technically limited to hospitals, medical laboratories, doctors’ offices and other healthcare providers, which have traditionally been the institutions and employers generally understood to fall under the law.
AB 322 would have changed all of that in a very public way by extending the reach of §5193 beyond its original borders to address potential blood and semen-borne exposures in an industry about as far removed from a healthcare provider as one can get. But if AB 332 were to have passed—or were still to pass—and even if it does not ever pass, the Pandora’s Box that §5193 represents for many other California businesses—in addition to adult-oriented ones—remains irrefutably in place, and according to some must be dealt with before any meaningful conversation about, or resolution to, the issue of mandatory condoms on porn sets can be arrived at. Any other so-called fixes would be like changing the sparks plugs on your car to fix a blown engine—the car still isn’t going anywhere.
It was with this “big picture” in mind that industry attorney Michael Fattorosi was motivated to pen a letter last week (attached below) about the reach of §5193, which he then sent to the commissioners of several professional sports leagues—including the NFL, NBA, NHL and WNBA, among others—as well as to several California-based professional teams: the Los Angeles Kings, Oakland Raiders, Los Angeles Lakers and San Diego Chargers, among others. The letter was intended as a very serious wake-up call to some of California’s most visible and treasured brands—that they also need to stop §5193 before it puts a stranglehold on them.
The letter was originally confidential. Others were sent by Fattorosi to the California Assembly Appropriations Committee, whose chairman, Mike Gatto, subsequently decided to shelve AB 332, as well as to the AIDS Healthcare Foundation, which had targeted one of Fattorosi's clients in a failed bid to get an adult producer on record as having violated Los Angeles’ new Measure B mandatory condom law. As AVN reported, however, the Los Angeles County Department of Health conducted an immediate investigation of the alleged offender, Immoral Productions, clearing it of any wrongdoing.
But the future of Measure B inspections will continue to be problematic as long as §5193 remains on the books and is clearly denoted as the underlying legislative foundation for laws targeting the adult entertainment industry. Nothing in the language of §5193, says Fattorosi, prevents it from being used against other industries, as well. The sole exception to that is the construction industry, which is excluded by name in the regs.
Indeed, in his letter to the sports commissioners and teams, Fattorosi lays out the specific provisions they would need to abide by should §5193 ever be used to ensure the health and safety of their employees—namely, professional athletes. (The text as it appears in Fattorosi’s letter is published below following our interview with him.)
AVN spoke Wednesday with Michael Fattorosi about California Code of Regulation section 5193, the letters he sent, and how he thinks the industry needs to proceed in order to engage the state in a way that will allow the industry to continue doing business free from truly oppressive state regulations.
AVN: What was your intent in writing the letter to the sports teams and league commissioners?
Fattorosi: Merely to inform them that the adult industry is not the only industry that California Code of Regulation section 5193 is applicable to. Blood exposures often occur in full-contact sports—especially in sports such as boxing or MMA. Cal-OSHA has shown a propensity to investigate adult companies for violating CCR 5193 by way of formal written complaint filed by AHF, and I see no reason why Cal-OSHA would not be bound to investigate any professional sports league or team that does not protect their players in case of an exposure reported to them by a third party written complaint.
Why have you decided to talk publicly about having sent the letters?
Now that AB 332 appears to be stalled and AHF is threatening a statewide ballot measure in its place, 5193 needs to be addressed immediately. We need to propose alternative language that is workable for the industry not only to protect performers but also maintain the core entertainment value of the content. Amending 5193 was started but never finished by Cal-OSHA.
What do people in the industry most have to understand about both AB 332 and Measure B? What are the biggest misconceptions being floated around about them?
We don’t know what we don’t know. There has been a debate about what Measure B requires: condoms for anal and vaginal sex or because of its reference to 5193, dental dams and other barrier protection. I don’t think we will know until the County of Los Angeles Department of Health makes public their “Exposure Control Plan” and “Bloodborne Pathogens Plan.” I have discussed both plans with LADH but the final versions are not yet finished. Hopefully, we will know shortly.
Do you believe §5193 can ever be modified or interpreted to apply reasonably to the adult entertainment industry or any industry other than those in the health care field?
Yes, but it’s going to require that we work with Cal-OSHA and the County of Los Angeles Department of Health. If 5193 applies to adult then it applies to any industry where blood can be transmitted during normal working conditions. Obviously, 5193's language needs to be modified for all of the other industries it can impact.
What in your opinion are the most egregious aspects of §5193 for this industry in particular?
Simply that Cal-OSHA has taken the position that, as written, the law applies to adult. That is akin to sticking a round peg into a square hole, no pun intended.
What in your opinion is the solution to §5193, and is it to be found at Cal-OSHA or in Sacramento with the legislature?
There has to be a solution, not only for adult but also for full-contact sports. I do not believe that the NFL, NBA, UFC, NHL or any of the teams that call California their home have even thought about how 5193 could apply to them. As for whether the authority rests with Cal-OSHA or the state Legislature, it rests with both.
What role do you think the industry should be playing in moving this conversation with the state in the right direction?
I think we need to reach out to the California Legislature, Cal-OSHA and LADH as well as other stakeholders affected by 5193 to open the discussion on how 5193 can be amended. The industry will continue to fight AHF in the legislature, the voting booth or in court until 5193 is amended. That is for certain.
Do you think a viable mandatory condom law is still achievable in California? What obstacles do you see other than “fixing” §5193? How optimistic are you that a solution amenable to both adult producers and the state can be reached?
This is not just a California issue. This is a national issue. Most states have similar “bloodborne pathogen” laws on their books. Another state could easily reference the California application to adult and do the same. We are seeing Ventura County copying the language of Measure B and passing its own version. If this issue is not addressed in California, it could easily spread to other states and even become a national regulation. Cal-OSHA has already informed us that before 5193 can be amended, federal OSHA will need to review and approve it. Once approved by federal OSHA, other states only need to adopt the approved regulation and we will have a federal condom law.
In his letter to California-based professional sports franchises and league commissioners, which was sent with the intent “to make all those with a stake in professional sports in California aware of a California Code of Regulations section that may affect all of your interests,” attorney Michael Fattorosi provided the actual regulatory language that pertains to their businesses.
“I have highlighted some of the more important text of the law for your edification,” he wrote. “I have also attached a copy for your perusal. California Code of Regulation section 5193 reads in relevant part:
§5193. Bloodborne Pathogens.
(a) Scope and Application. This section applies to all occupational exposure to blood or other potentially infectious materials as defined by subsection (b) of this section.
"Blood" means human blood, human blood components, and products made from human blood.
"Bloodborne Pathogens" means 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 Incident" means a specific eye, mouth, other mucous membrane, non- intact skin, or parenteral contact with blood or other potentially infectious materials that results from the performance of an employee's duties.
"Other Potentially Infectious Materials" means:
(1) The 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;
"Personal Protective Equipment" is specialized clothing or equipment worn or used by an employee for protection against a hazard. 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.
(d) Methods of Compliance.
(1) General. Universal precautions shall be observed to prevent contact with blood or OPIM.
Under circumstances in which differentiation between body fluid types is difficult or impossible, all body fluids shall be considered potentially infectious materials.
(4) Personal Protective Equipment.
(A) Provision. 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. Note: For fire fighters, these requirements are in addition to those specified in Sections 3401-3411, and are intended to be consistent with those requirements.
(3) Post-exposure Evaluation and Follow-up. Following a report of an exposure incident, the employer shall make immediately available to the exposed employee a confidential medical evaluation and follow-up, including at least the following elements:
(A) The employer shall document the route(s) of exposure, and the circumstances under which the exposure incident occurred;
(B) The employer shall identify and document the source individual, unless the employer can establish that identification is infeasible or prohibited by state or local law;
1. The source individual's blood shall be tested as soon as feasible and after consent is obtained in order to determine HBV, HCV and HIV infectivity. If consent is not obtained, the employer shall establish that legally required consent cannot be obtained. When the source individual's consent is not required by law, the source individual's blood, if available, shall be tested and the results documented.
2. When the source individual is already known to be infected with HBV, HCV or HIV, testing for the source individual's known HBV, HCV or HIV status need not be repeated.
3. Results of the source individual's testing shall be made available to the exposed employee, and the employee shall be informed of applicable laws and regulations concerning disclosure of the identity and infectious status of the source individual.
Michael Fattorosi's letter to professional sports franchises and league commissioners is here.