CalOSHA Meeting Leaves Little Hope For Condomless Future (UPDATED)

(The following article contains additional information than the version published on Wednesday.)

LOS ANGELES—An advisory subcommittee of the California Occupational Safety and Health Agency (CalOSHA) met today to discuss "control measures" for dealing with sexually-transmitted infections (STIs) in the adult industry—but it might as well have been a summit of Democrats and Republicans... with a bit of Britain's Silly Party thrown in.

The meeting took place beginning at 10 a.m. at 100 S. Main Street in downtown, and besides the subcommittee itself, less than 25 others attended, and after lunch, less than 20 remained. Adult industry supporters in attendance included Free Speech Coalition (FSC) executive director Diane Duke, talent agent Derek Hay and Protecting Adult Welfare founder Bill Margold.

The subcommittee itself was chaired by CalOSHA inspector Deborah Gold and District Manager Peter Riley, and included adult industry attorney Paul Cambria, Free Speech Coalition representative and industry regulatory expert Kevin Bland, Hot House Entertainment CEO Steven Scarborough, Evil Angel General Manager Christian Mann, former adult actress Traci "Anita Cannibal" Bryant, Immoral Productions CEO Dan "Porno Dan" Leal, AIDS Healthcare Foundation in-house attorney Brian Chase, LA County Department of Public Health's STD program director Dr. Peter Kerndt, UCLA Public Health Interest Group director Dr. Paula Tavrow, nurse Denise Bleak and California Department of Health Services STD Control Branch Chief Dr. Gail Bolan, with CalOSHA attorney Amy Martin attending by phone.

Ostensibly the meeting was called to discuss three proposals for possibly revamping the California Labor Code to include health and safety rules for adult performers: A petition by the AIDS Healthcare Foundation (AHF), which it had originally sent to the CalOSHA Standards Board last December; a response to that proposal from the Los Angeles County Department of Public Health; and a counter-proposal from the Free Speech Coalition. However, although five hours (including a 45 minute lunch break) had been "budgeted" for the discussion of all proposals, it was 2:45 before the FSC proposal was reached, necessitating a further subcommittee meeting which might take place in concert with an advisory subcommittee meeting of "medical experts" currently scheduled for September 14. A "wrap-up meeting" during which all the subcommittee reports will be considered as part of a possible rules change proposal for the Standards Board is scheduled to take place in San Francisco on October 25.

"Foremost in our minds," Gold said at the outset of the meeting, "is the 'as effective as' issues," by which she meant whether anyone had or could come up with a method of protecting performers from contracting STIs that was better than the already-legally-mandated use of condoms and other "barrier protections." However, Bland was quick to point out that "as effective as" did not mean "the same as," which seemed to leave open the possibility that some non-barrier method might be approved.

But as the discussion progressed, it became clear that only two real factions existed in the room: AHF and the UCLA Reproductive Health Interest Group which supported only condoms and dental dams (and possibly goggles, though those were not discussed); FSC which supported an improved testing procedure; and the Department of Public Health's Dr. Kerndt, who seemed to support a combination of the two.

But although several AHF attendees kept trying to insert the condom requirement into the early discussion, most of the morning was taken up with a discussion of how performers and other adult industry personnel could be trained to follow the existing safety precautions as set forth in the California Code's section on blood borne pathogens: Who would do the training; what certifications those trainers would require; and who would pay for the training.

Gold made it clear throughout that under current law, "employers" were required both to administer the training and pay for it, as well as to pay for whatever vaccinations and tests might be required to bring performers and crews into compliance with the regulations—which only raised the question of who would be considered an "employer" and which talent they would be responsible for educating?

There seemed to be general agreement that Cambria's proposal for an interactive online training program, where talent and others would have to read text and/or listen to video presentations and then answer questions about the material, would be an acceptable solution to how the training would be conducted, but the question of how it would be paid for was left up in the air, as was the question of how companies could be assured that their crews and performers had actually completed the training. Leal suggested that possibly a photo ID card could be issued upon completion of the training course, but Gold noted that besides the general training, it was possible that some or all of the production companies might need to offer training specific to their own company practices and facilities—again, at company expense.

Duke gave a PowerPoint presentation on what FSC thought should be some of the elements of the general training program, but AHF's Mark Roy McGrath objected that FSC's program placed too much onus on the performers' responsibilities under the training rather than the companies', while Tavrow expressed concern that FSC's proposal didn't deal at all with "barrier protection" as the law currently requires, and still others objected to FSC's idea that performers could help by giving themselves self-examinations to look for signs of STIs—and so it typically went: Industry supporters would make proposals and AHF and its supporters would attempt to find flaws in them.

In the midst of the discussion, Bryant chimed in with the question, "How do you get consent from people who are... mentally ill or loaded on the set?" To which Margold, a former probation officer, added, "The adult entertainment industry is an overage version of Juvenile Hall," and suggested that the training regime be reduced to comicbook form. Scarborough responded that in his experience, performers generally aren't crazy or high, and that under the industry's current "extreme financial stress," no producer would take on the liability of hiring a stoned performer.

"This is not a party, it's a business," he observed.

After lunch, the subcommittee took up AHF's petition in some detail, including proposals that adult producers be "required to maintain engineering and work practice controls sufficient to protect employees from exposure to blood and/or any potentially infectious materials," including but not limited to simulated sex acts; ejaculations outside performers' bodies; condoms for all vaginal and anal intercourse—a condom requirement for oral sex was also discussed—use of lube to "facilitate the use of condoms"; and plastic and other materials to clean up sets after the shoot. AHF further wanted "employers" to provide hepatitis B vaccines to performers at company expense, and if a performer is "exposed to any blood or potentially infectious materials," to provide post-exposure prophylactic treatment for HIV and "comprehensive testing for other sexually transmitted diseases, and appropriate treatment" for any infections that were found—again, at company expense.

Needless to say, the condom/dental dam requirement brought a quick response from most of the adult industry representatives, with Mann noting that his former company, Video Team, had been bankrupted by a condom-only policy adopted after the 2004 Darren James outbreak, while Cambria urged that the subcommittee "approach things from a practical perspective." He noted that while CalOSHA can make (and according to Gold, has already made) "barrier protection" mandatory for California producers, adult video is a world market, and to avoid forced condom use, producers could move to other states or even other countries where those requirements would not be in force—or could go underground, where condoms wouldn't be used and performers would be at greater risk for STIs owing to the lack of any testing regimen that undoubtedly would attend any "underground" shoots. He urged that the Standards Board come up with a regulation that would "actually work."

For their part, AHF and RHIG members sniped at many current industry practices, including the fact that Adult Industry Medical Healthcare Foundation (AIM) is the primary provider of testing in the industry and that after voluntary waivers from tested performer, makes the results of the tests available to adult producers who might wish to hire the performer. However, Hustler talent coordinator Jennifer Larsen countered that in casting performers for productions, she would want to see the test results of any performer she would consider using.

Several industry opponents attempted to link the condom-use practices of Nevada brothels to adult movie industry practices—an attempt decried by both Cambria and Duke, since brothel clients are not tested before having sex, so the prostitute has no idea what the client's health situation is, whereas performers are tested every 28 days. There was some discussion of this subject, with various participants including Leal suggesting that perhaps the testing period should be shorter—every 14 days or even every week—while others including RHIG's Christina Rodriguez-Hart and Kerndt complained that the AIM tests were not sufficiently comprehensive, and that swabs of a performer's throat and anus should also be taken to test for less-easily-detectable STIs.

The afternoon's discussion kept coming back to the question of requiring condoms for oral sex. One problem noted by both Gold and Bolan was the lack of statistics on disease transmission from blowjobs, with Bolan noting that the Centers for Disease Control don't currently recommend condoms for oral sex. Scarborough added that in his experience in the gay adult industry, the risk of transmission from oral is "minimal," adding that "People don't have oral sex with condoms." Even McGrath admitted that the topic of transmission via oral sex was "divisive" within the AHF organization. However, Rodriguez-Hart wondered if the risk would be increased in situations where one person performed blowjobs on multiple partners—the "blowbang" scenario.

Bryant later helpfully added that semen wasn't the only fluid exchanged on adult movie sets; that urine, saliva and other fluids were also common, and that the effects of those should be considered as well.

At one point, Tavrow focused on the Darren James HIV infection in 2004, noting that of the 13 sexual contacts he'd had on sets after he became positive while shooting a movie in South America, three had become HIV-positive, which she said meant that the rate of transmission within the industry from one HIV-positive performer was 23 percent. Apparently, there was no one in the audience with sufficient math or sociological skills to challenge the validity of an alleged "transmission rate" based on just one case.

Bland then raised the question of whether there was such a thing in disease-prevention science as an "acceptable level of risk"? Tavrow responded that what the subcommittee should be concerning itself with was how to make the risk as small as possible, to which Bland countered that since risk wouldn't be eliminated no matter what rules were put in place, the group needed to discuss minimization of risk, since he didn't believe that even the federal OSHA health standard was "as minimal as possible."

Sadly, aside from some supportively rational comments by Bolan, there seemed to be little support for the "harm reduction" approach, even though all admitted that "barrier protection" was far from perfect—but Cambria insisted that, "If CalOSHA says, 'it's condoms and that's that,' we have nothing to discuss."

Indeed, when Duke finally began discussing FSC's proposal, she quickly caught flack from opponents over its definition of "barrier protection," which FSC defined as "various protective devices, medications, methods, or means used to prevent infectious contact with blood, vaginal secretions, semen or other contaminant agents," which AHF's Whitney Engeran charged would allow the type of testing performed at AIM to be considered "prevention." Gold agreed, noting that under the law, medication would not be considered a "barrier" to disease transmission.

Duke was also pilloried for attempting to distinguish between "exclusive actors"—those under exclusive contract to a particular studio—and "non-exclusive actors" who could work for many studios, with opponents charging that the definitions were an attempt to relieve the studios of their alleged responsibility to pay for all talents' STI training and testing. How such expense could be handled was briefly discussed, with Gold suggesting that employers could pay into a sort of "testing/treatment fund" which would benefit all performers no matter how employed. However, Scarborough noted that not all adult movies are shot in L.A. or even in California, and that using state agencies to track payments for testing and training of out-of-state performers would not be feasible.

Finally, at 3:15, Gold called a halt to the day's discussion—but not before Margold, acting as apparently some sort of self-appointed negotiator for the adult industry, offered, "If you give us oral sex, unprotected, we'll give you anal sex, protected, with vaginal up for grabs." The comment gave just about everyone a good laugh, but with Gold finally observing that "Barrier protection for anal and vaginal sex is a line in the sand" for the people in the room, it was Cambria's previous comment about CalOSHA's apparent intractibility on the condom issue that summarized the problem well. However, at the next meeting when FSC's proposal is discussed, that might conceivably change—but from the overall tenor of the day's discussions, that also might be the point when pigs fly.