CalOSHA: Measure B Is About More Than Condoms-UPDATED

SACRAMENTO—In an article published today in the Cal-OSHA Reporter, a (subscription-only) daily round-up of news from Occupational Health & Safety Administration (OSHA) offices from around the country, CalOSHA made it clear that when Measure B's text refers to "condoms," it is actually referring to the full roster of "barrier protections" set forth in California Code of Regulations Title 8 Sec. 5193.

The article begins with the typical AIDS Healthcare Foundation-inspired conflation of the terms "barrier protection" and "condom," when the newsletter's reporter writes, "The AIDS Healthcare Foundation (AHF) won its local fight to force the adult film industry (AFI) to use 'barrier protection'—condoms—as a condition of the production permitting process in Los Angeles County."

But in the story's fourth paragraph, the truth comes out, if only readers are savvy enough to look up and read the cited section of the California Code of Regulations.

"Measure B ... requires that adult film producers obtain a public health permit from the county and observe all health and safety laws, including Cal/OSHA's bloodborne pathogens standard, General Industry Safety Orders §5193, which requires barrier protection," the article states.

"General Industry Safety Orders §5193," also known as California Code of Regulations Title 8 Sec. 5193 is a long section—AVN's download of it runs to 31 pages—and after wading through interminable regulations involving "Contaminated Laundry," "Engineered Sharps Injury Protection," "Occupational Exposure" and the like, the regulation refers to the fluids these "engineering controls" are meant to guard against: "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." [Emphasis added] Of course, that's just about all the bodily fluids—also known as "blood or other potentially infectious materials (OPIM)"—that might be present on adult movie sets.

And while Sec. 5193 talks about "Exposure Control Plans," "Engineering and Work Practice Controls," "Regulated Waste" and "Cleaning and Decontamiantion of the Worksite," it isn't until page 12 of the regulation that it speaks of "Personal Protective Equipment." That term is earlier defined as, "specialized clothing or equipment worn or used by an employee for protection against a hazard," and the regulation 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."

But on page 12, the section labeled "Personal Protective Equipment" (which is what the term "barrier protection" refers to) 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]

And of course, when you put "gloves, gowns, laboratory coats, face shields or masks and eye protection" together, you've essentially got a hazmat suit.

Now, in the following paragraph, the regulation allows that there might be times when such equipment could be dispensed with, but if so, the lack of use can be only temporary, and requires an investigation following such non-use:

"The employer shall ensure that the employee uses appropriate personal protective equipment unless the employer shows that the employee temporarily and briefly declined to use personal protective equipment when, under rare and extraordinary circumstances, it was the employee's professional judgment that in the specific instance its use would have prevented the delivery of health care or public safety services or would have posed an increased hazard to the safety of the worker or co-worker. When the employee makes this judgment, the circumstances shall be investigated and documented in order to determine whether changes can be instituted to prevent such occurences [sic] in the future." [Emphasis added]

So the only time employees are allowed to forego the equipment is when using it would make it more difficult or impossible to deliver "health care or public safety services or would have posed an increased hazard to the safety of the worker or co-worker." Clearly such an exception would not apply to people having sex as part of their regular course of business.

So once again, it's clear that the voting public was misled by the Measure B summary that appeared on LA County ballots, which mentioned only "condoms," when in fact, even CalOSHA admits that now that Measure B is the law of the county, enforcement will not be just about condoms, but will require that no person's bodily fluids or "possibly contaminated" areas of skin will be allowed to touch the "skin, eyes, mouth or other mucous membranes" of another person—and what that quite obviously boils down to is, there'll be no sex in sex movies after Measure B is put into force.

The text of the Cal-OSHA Reporter article can be found here. The text of the "General Industry Safety Orders §5193" can be found here.


UPDATE: The following tweet was posted by the "Yes On B" campaign: "@AdultVideoNews is dazed and confused: @markkernes mistakes news article for official Cal/OSHA statements. Carelessness or jingoism?#YESonB "

First of all, the "news article" AHF is referencing is the one that's the subject of the above article, and which appeared in an official CalOSHA publication, and was linked to in the Cal-OSHA Reporter, so it's reasonable to assume that what's written there is the official position of CalOSHA. We're guessing that, like most other government publications, some editor checks his/her reporters' articles for, among other things, accuracy.

But let's assume for a moment that whoever wrote the (non-bylined) CalOSHA article actually doesn't understand the difference between "condoms" and "barrier protections"—a reasonable assumption, considering that the two terms are not the same: "Barrier protections" is a far more inclusive term than simply "condoms."

So what the "Yes On B" tweet is really saying is that even though Measure B clearly states that any adult producer which does not adhere to all of the requirements of the "General Industry Safety Orders §5193" (aka California Code of Regulations Title 8 Sec. 5193) can have its public health permit revoked, and will not get that permit back until it does comply with all of the Sec. 5193 requirements, it's AHF's position—even though it wrote the entire text of Measure B—that adult producers really don't have to follow that law; that all they have to do is use condoms in sex scenes, and all the other legally required "personal protective equipment"—the rubber gloves, the face shields, the goggles, the latex vaginal coverings (aka "dental dams")—can just be ignored.

That seems a strange position for AHF to take—but of course, it's just one more example of how that organization is continuing to attempt to fool the voting public into thinking that Measure B is just about condoms, when it knows full well that it isn't.

Fortunately, not everyone is as stupid (and/or illiterate) as AHF apparently thinks they are.