Tempers Flare at Fourth Cal/OSHA Meeting on Condoms

OAKLAND, Calif.—In a world where global climate change is still hotly debated, where unemployment has reached levels not seen in 80 years, and where Wall Street traders still run rampant, whether porn stars should be forced to wear condoms (and possibly dental dams and goggles) during their sex scenes may in fact be a "simple question," as AIDS Healthcare Foundation (AHF) employees and supporters continually characterized it during Monday's meeting of the CalOSHA Advisory Committee on blood borne pathogens in the adult industry—but then again, maybe it isn't.

The lowlight of the meeting, which garnered about 50 attendees, including employees of San Francisco's St. James Infirmary clinic as well as Treasure Island Media, was a presentation by Brian Chase, assistant general counsel for AHF, who charged, among other things, that "most adult film producers do absolutely nothing to protect employees from exposure to bodily fluids that can contain disease"; that "preventing STDs by testing makes as much sense as preventing pregnancy with pregnancy tests"; that "the industry uses testing as a smokescreen, a ruse on unsuspecting workers into believing that they are somehow protected."

Of course, the Adult Industry Medical Healthcare Foundation (AIM) produced a handout at the meeting noting that in fact, gonorrhea infections in the performer population from 2005 to present have averaged 1.6 percent, while chlamydia infections have averaged 2.5 percent for the same period, but that had no effect on Chase's unsupportable claims.

While Chase did make the valid point that testing for HIV, chlamydia and gonorrhea every 28 days allows too great a possibility that infection might occur and be spread between tests, he suggested that the testing regimen was prone to false negatives which could lead to "unacceptable outbreaks and unacceptable preventable outbreaks of work-related infections."

He further railed against performers being required to pay for their own tests, and against AIM's “giving unfettered access to [test data] websites to multiple unknown persons in the adult film industry,” which he said “violates a wide array of confidentiality laws and regulations”— ignoring the fact that performers voluntarily sign releases of their test data to adult producers.

Chase took attorney (and Free Speech Board chair) Jeffrey Douglas to task for saying to Los Angeles Times, "The reality is that CalOSHA doesn't have enough personnel to stop people from dying of dehydration in the San Joaquin Valley. They don't have a prayer of enforcing against this industry," then asked, "Has any other industry appeared before an official board of the state of California and flatly declared that it will simply not apply sensible worker safety regulations? Do any other industries just stand up and say, 'We refuse to obey the law'? But Mr. Jeffries [sic] wasn't content to find that his industry broke the law. He went on to say that if the industry is placed under more pressure to protect workers from problems, the industry would lose the safety net it already has, as if advocacy for mandatory condoms would somehow make them drop whatever protection is offered by testing. This means an industry leader flatly declares that if this industry is put under pressure to protect workers, they will respond by making working conditions even more unsafe!" (The possibility that Douglas simply recognized and stated the fact that many adult companies, if required to go "condom-only," would move their productions out of state or underground was apparently deliberately ignored by Chase.)

Calling reliance on testing "magic and wishful thinking," Chase charged that the industry "needs to understand the rules and they need to experience sanctions [read: large fines] until they abide by them."

All in all, rather than a presentation on AHF's petition which began this entire hearing process, Chase simply delivered a diatribe charging bad faith on the part of adult businesses which, acting entirely on their own, put together a testing regimen which has served to keep STD exposure to a minimum and HIV exposure in the hetero performer population virtually non-existent.

But attorney Paul Cambria, representing several adult companies at the hearing, would have none of it.

Cambria began by distinguishing the fact that, unlike hospitals and building construction sites, adult movie production is incredibly mobile, and that Douglas' statement, as well as statements by other industry leaders, were merely "trying to give a practical aspect of a result that's possible. One of the things that Kevin [Bland, FSC's attorney] keeps saying is, it has to be a workable solution. If I'm building a building downtown, there's no question CalOSHA rules would apply and I will comply with them and workers will be protected of there will be citations. On the other hand, in the adult industry, as in any other industry which is not California-sited specifically, some people will be responsible—in fact, I'm confident all the studios that I represent will be responsible. They will test, no matter what the regulations are; they will make condoms available; they will respect people's wishes as to whether to use them or not—they will be responsible.”

However, Cambria went on to say, those studios ”are a very small part of the production fabric of adult material. There are thousands of producers who are independent, who are small and who will in no way expose themselves to conditions or regulations that are not workable from the way they see things, and whether that be from an economic standpoint or whatever standpoint, and they will exercise an option. They will go to Mexico, they'll go to Canada; they'll go wherever they have to go or they'll just hide out, and they'll do it. And if they do, and people in the industry are going to work anyway and work under those conditions with no protections whatsoever, what will your answer be to them when you say, 'Well, you know what, I was instrumental in having Cal/OSHA implement a number of requirements which drove 80 percent of the people who don't care—and who you can't force because they're not going to be in California—to go film, and people went there and worked for them, with no protections whatsoever? You'll achieve that, and it seems to be the one thing that you can't factor into this, and it's reality. Reality."

That last remark drew audience applause.

"A number of companies will be responsible no matter what," he continued. "The vast majority of the companies will move if you make it impossible ... or so onerous that they can't do business, and they will do it. ... So that's what going to happen. So if you keep lobbying for 100 percent absolute protection—you know, put somebody in a head-to-toe condom so there'll be no risk whatsoever—what you will do is a disservice to the worker because they will still work and they will have no protection, because that's going to be the reality of it. That's the reality. So I think we should concentrate on something that's going to work and be effective and give more protections than no protection to the vast majority of people that are going to work in this business no matter what the rules are, because they do and they will, and that's the nature of the business. That's how it's going to go. So have at it."

While the exchange between Chase and Cambria clearly drew the battle lines staked out by each side in the controversy, it wasn't all that happened at this fourth committee meeting—and by the end of the day, it was clear that although only four meetings had been scheduled, several more might easily be required.

The day began, however, with a PowerPoint presentation by Frank Strona, Chief of the San Francisco Department of Public Health's STD/HIV Unit - STD Prevention & Control Section. Strona began by noting that within the past year, his office had reached out to adult film industry (AFI) studios in the Bay area to take part in a "pilot training program" whose aim was to engage the studios to better inform actors and employees about health resources they could use, and also to establish an avenue of communication between the Health Department and the studios in order to work with them and to act as a conduit for health information both to and from the studios.

Dealing initially primarily with gay studios, Strona noted that his department recommends that STD testing occur every 90 days for sexually active gays (referred to as MSM: "men who have sex with men"); that the studios create and make available a "performer health model" to promote their health; that the studios have a "clear and consistent condom use policy for anal/vaginal intercourse," and that they "develop an equitable way to support testing access for performers, that also recognizes residency, travel and prior testing."

Following Strona's presentation, CalOSHA Senior Safety Engineer Deborah Gold, who chaired the meeting along with District Manager Peter Riley and agency attorney Amy Martin, recited reports from the two subcommittees that had been convened, the Medical Issues Subcommittee and the Control Measures Subcommittee. The discussions that took place at those hearings can be found on AVN's website.

After a lunch recess, Free Speech Coalition Executive Director Diane Duke was finally able to complete her explanation of FSC's counter-proposal to the AHF petition. The proposal began by defining several terms, the most controversial of which was "barrier protection," which FSC would define as "various protective devices, medications, methods, or means used to prevent infectious contact with blood, vaginal secretions, semen or other contaminant agents." Various attendees, including Mark Roy McGrath of UCLA's Reproductive Health Interest Group, objected to including "medication" in the list of barrier protections, describing that tool as a method of "surveillance" rather that as a barrier.

Duke went on to describe FSC's proposed testing procedures, which are the ones largely already in use by the industry: Testing every 28 days for HIV, chlamydia and gonorrhea, and every six months for syphilis and Hepatitis B. The FSC plan also called for the use of barrier protection in the absence of testing, and training of company employees in each company's "exposure control plan" regarding what to do if an STD exposure has occurred and how to report same to the proper authorities. It also recommends that performers be trained to recognize the physical signs of STD infections.

Following Duke's presentation, Dr. Peter Kerndt of the Los Angeles Department of Public Health noted that FSC's plan did not call for the use of rectal and throat swabs during the testing procedures, and Duke agreed to amend FSC's plan to include those.

At one point, AHF staffer Whitney Engeran-Cordoba asked if FSC was saying that testing is an alternative to physical barrier protection, and both Duke and Bland agreed that the plan so stated—at which point Engeran-Cordoba argued that testing is not a "true barrier"—a point that was discussed at some length.

The above-described Chase/Cambria exchanged followed Duke's report, and the ensuing discussion appeared to indicate that AHF's position is that the FSC proposals would not increase workers' health, and that contrary to statements from both Duke and Cambria, condoms are in fact not an option on many adult sets. Moreover, Dr. Kerndt maintained that the industry could be made to comply with the existing condom requirements if the penalties for not doing so were sufficiently high.

The afternoon's final speaker was Dr. Ronald P. Hattis, president of Beyond AIDS, "a national organization dedicated to reversing the course of the HIV epidemic through sound public health practices" located in Northern California. Dr. Hattis presented yet a third proposal for dealing with sexually transmitted infections in the adult industry, but some of his suggestions—for example, that infected performers could still do sex scenes if they wore condoms, and that some method to change the culture so that condom use in adult movies would be more acceptable, like touting the fact that flavored condoms are available—were not seen by adult industry professionals as workable.

In sum, this fourth meeting of the CalOSHA committee solved little, though some participants noted that some issues had at least been narrowed enough for further possibly productive discussion. It was unclear, however, whether Gold would schedule further committee (or subcommittee) meetings, or whether some discussions would be carried out through email.

Keep checking back with AVN.com for further information and analysis of this vital adult industry issue.