LOS ANGELES—For a while, we weren't sure whether it was even possible for AIDS Healthcare Foundation (AHF) to tell the truth about the adult entertainment industry—but we're getting more sure that they can't. The latest evidence? A press release posted yesterday, titled "AHF Calls Out Porn Industry Over Goggles Claim, other Scare Tactics on Updated OSHA Condom Regulations."
"AIDS Healthcare Foundation (AHF)—a fierce advocate for improved adult film worker safety—is calling out the adult film industry and its producers’ trade group, the Free Speech Coalition (FSC) over its ongoing misleading and fear mongering claims about what the updated Cal/OSHA regulations actually entail," the press release states in its opening paragraph, and if "fierce advocate" includes lying, deliberately misrepresenting others' facts and positions and, yes, "fear-mongering," then it's hard to argue with that statement ... other than the fact that Free Speech Coalition (and AVN) got it right about the effects of the revisions to the California Health Code, codified in new Section 5193.1.
Let's examine AHF's claims of FSC's "misleading and fear mongering" one by one, shall we?
"Claim: Cal/OSHA’s proposed updated Bloodborne Pathogens Standard will require goggles in adult films.
"Fact: According to Dr. Jeffrey Klausner, Professor of Medicine and Public Health at the UCLA David Geffen School of Medicine, 'The proposed language does not include the word "goggles" anywhere. Only the current standard, Section 5193, cites goggles as a type of personal protective equipment because the language covers all types of industry workers in California...'"
AVN calls bullshit: Here's what Section 5193.1 actually says: "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, condoms, gloves for cleaning, and, if contact of the eyes with OPIM-STI is reasonably anticipated, eye protection. Personal protective equipment will be considered 'appropriate' only if it prevents blood or OPIM—STI from passing through to or reaching the employee's eyes, mouth, or other mucous membranes, or non-intact skin under normal conditions of use and for the duration of time which the protective equipment will be used." [Emphasis added.] Now, if AHF or Klausner has some idea as to how "blood or OPIM-STI" (that's "other potentially infectious materials—sexually transmitted infections") can be prevented from reaching a person's eyes during, say, a blowjob without the male performer wearing a condom (which even under 5193.1 they're not required to do except for vaginal or anal intercourse), we'd be anxious to hear it. But the fact is, there's no way except for the blowjob performer to wear goggles (or a face shield).
"Claim: Adult film workers are independent contractors, not employees.
"Fact: Adult film workers are employees and therefore protected under the California Code of Regulations, which mandates condoms in adult films. The California Occupational Safety and Health Administration (Cal/OSHA) is tasked with protecting workers throughout California. While many adult film workers are paid as independent contractors, a California Occupational Safety and Health Appeals Board ruled in 2015 that adult film workers meet the legal conditions to be considered employees."
AVN calls bullshit: The question of who is an employee and who is an independent contractor has been the subject of litigation, mostly from the adult cabaret industry, for at least the last 20 years—and despite AHF's claims, that question is still far from settled. The fact is that except for contract players, when adult performers are hired to appear in individual adult productions (movies or web scenes), they are told where to show up and what clothing to bring—they often even have to do their own makeup. Once on the set, they are expected to have sex with one or more other performers, and possible recite some dialog—but they are not told how to have sex (position, duration, etc.), not told how long they will be on that set, don't sign time cards reflecting how long they are on the set, often are responsible for providing for their own meals, their own transportation, and the money for this work—usually a set fee agreed to beforehand—often is paid to the performer's personal corporation. Moreover, under CalOSHA's interpretation of "employment," even women whose sole relationship to the adult industry is through the webcamming they do from their own homes would be considered to be "employees," which is about as ludicrous as it can get.
"Claim: The adult film industry requires rigorous STD testing.
"Fact: STD testing in the adult film industry is voluntary and does not meet medical recommendations. Some studios require adult film workers to get tested for STDs every two weeks, some studios require adult film workers to get tested monthly, and some studios do not require adult film workers to get tested at all. In addition, the Free Speech Coalition’s STD testing scheme does not test for all infections and does not test all anatomical sites."
AVN calls bullshit: The simple fact is that no adult performer in the (legitimate, legal) "straight" adult industry will work with another performer who does not have a recent (less than 14 days old) STD test. Is there some rule that says that? No, there isn't—but it is the universal practice in the industry, so much so that if a performer does not have a "clean," recent (14-day) test, that person is listed as "unavailable for work" on the Performer Availability Screening Services (PASS) system and no legitimate producer will hire that person. Moreover, performers often look at each other's tests to assure themselves that they are working with an uninfected person. Testing protocols are also periodically updated, and when physician advisors to the adult industry recommend that a new test be added, it is. Talks are also currently under way to bring the gay side of the adult industry, which often pairs HIV-positive performers to work with each other, into the PASS testing regimen. This has been difficult because of the long-standing fear in the gay community of being labeled HIV-positive, with the idea having been floated during the Reagan administration of putting all HIV-positive individuals into "isolation camps," with HIV having then been described as a "gay disease"—something AIDS Healthcare should be well aware of.
"Claim: There has been no HIV transmission in the adult film industry since 2004.
"Fact: An adult film worker contracted HIV on an adult film set as recently as 2014. According to the California Department of Public Health, an adult film worker who had tested at a Free Speech Coalition-approved testing facility within the past 14 days infected another adult film worker on set because condoms were not provided ..."
AVN calls bullshit: As noted above, HIV testing among gay adult performers is far less common than among straight performers—and the alleged incident, which AHF has gone out of its way to obfuscate, allegedly occurred on a gay adult set ... in Nevada. Moreover, despite CalOSHA's claims, it remains unclear whether the HIV-positive performer had indeed been tested at a "Free Speech Coalition-approved testing facility," nor that the test he took, if any, was what the California Department of Public Health describes as a "HIV-1 RNA nucleic acid amplification testing (NAAT)," which is one of the standard tests given to all straight adult performers. That's because the performers involved were not part of the industry standard PASS system, and if they had been, the physician who performed the test would have entered that data into the PASS database. Therefore, the description of the alleged testing facility as "FSC-approved" is undoubtedly bogus. It should be noted that as a general rule, AHF describes all performers who became HIV-positive—several of whom are being treated by and/or paid stipends by, AHF—as having contracted the disease "while working in the adult industry," even when it's been crystal clear that such infection did not occur on an adult set.
"Claim: Adult film workers are consenting adults and should decide whether or not to use condoms.
"Fact: Adult film producers must require condoms on set when adult film workers get paid to work. According to existing Cal/OSHA decisions, adult film producers are officially employers and adult film workers are officially employees. As employers, adult film producers are expected to comply with existing workplace health and safety regulations to protect their employees just like any other industry in California."
AVN calls bullshit: As AHF is well aware, the Health Code regulations regarding bloodborne pathogens—and specifically, sexually transmitted infections (Title 8, Section 5193)—were written in the early 1990s for physicians and other medical personnel directly involved in patient care. Those regulations were never intended to apply to the adult entertainment industry, which is not anywhere mentioned in those regulations, and in fact CalOSHA took no interest in adult production until roughly 2010—and the sole complainant in the majority of cases that CalOSHA has investigated was (you guessed it!) AIDS Healthcare Foundation. Early on, it was rumored that AHF's interest in the adult entertainment industry was due to AHF's wish to become the primary (if not sole) testing facility used by the adult industry, and the recent lawsuit filed by several former AHF branch managers gives credence to that rumor.
"Claim: The adult film industry was ignored during discussions surrounding proposed Section 5193.1.
"Fact: The adult film industry was well-represented and spoke at all meetings conducted by Cal/OSHA between 2009 and 2015. All comments submitted by the Free Speech Coalition on May 21, 2015 to the Cal/OSHA Standards Board were responded to by Cal/OSHA."
AVN calls bullshit: As Free Speech Coalition pointed out on Tuesday, in an attachment to a press release, "Amendments made to the regulation [5193.1] after the hearing in May, 2015, appear to rely significantly on the input from the retired industrial hygienist Deborah Gold. It is important to point out that Ms. Gold's apparent bias against the Adult Film Industry began early as evident in her selection of stakeholder committee members. Ms. Gold chose, as the performer representative, a woman [Anita Cannibal] working in a Nevada brothel, who had not performed in the adult film industry for nearly 10 years. Ms. Gold further selected a producer [Dan Leal] who, instead of using professional performers, used consumers as partners for female performers—not a typical practice for the industry. These unorthodox selections were made after an email had been sent to Ms. Gold with the offer to provide access to hundreds of active California performers and producers for representation on the committee." And as for the CalOSHA Board having "responded" to FSC's comments on the revisions to proposed Section 5193.1, out of 37 specific recommendations by FSC for additions, delections or expansions of various sections of the 5193.1 revisions, the most common phrases used by the Board in its response are "The Board disagrees ..." and "The Board does not agree ... ." In fact, not one single change suggested by FSC was accepted by the CalOSHA Standards Board.
So much for FSC claims and AHF "facts"!
In other AHF news, the organization also put out another press release yesterday, patting itself on the back for having collected enough signatures to make its so-called "California Safer Sex in the Adult Film Industry Act" "eligible for" the November, 2016 statewide ballot, with "eligible" being defined by AHF as "the new term that applies to initiatives during the time frame beginning today and ending when the measure formally 'qualifies' for the ballot—131 days before the (November 2016) election."
But one particular paragraph caught our eye: "However, during this eligibility time frame, California’s Legislature is now required under recently enacted law to conduct hearings on the measure, and Michael Weinstein (the citizen proponent of the measure) is permitted, if so desired, to withdraw the measure (i.e., if the Legislature passes and the Governor signs a similar law such that the measure no longer needs to be voted on by the people). If the Legislature fails to act before the 131-day window prior to the election, the measure will be placed on the November 2016 ballot." [Emphasis added]
This is, of course, the same sort of blackmail that AHF pulled on the City of Los Angeles roughly four years ago, when it (or, rather, its front group, FAIR) threatened to mount a local initiative, at an estimated cost of $4.4 million, as an attempt to leverage the Los Angeles City Council to pass a mandatory condom ordinance on its own. That one, of course, worked. Whether the state legislature will buckle under to the same sort of extortion remains to be seen.
