[Ed. Note: The following is the mock up version of AB 2798 that was presented to the Assembly Health Committee. The sections of the bill that have been stricken represent sections that were altered during the process of drafting the bill]
BILL NUMBER: AB 2798
INTRODUCED BY Assembly Member Leslie FEBRUARY 20, 2004
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Division 10 (commencing with Section 25800) is added to the Business and Professions Code, to read:
DIVISION 10. ADULT ENTERTAINMENT--COMMUNICABLE DISEASE PREVENTION
25800. (a) It is the intent of Legislature in enacting this division to obstruct the spread of sexually transmitted diseases in the general population by taking steps to ensure the health and safety of those whose job it is to perform sexual acts with other individuals for the purpose of providing public entertainment through visual media.
(b) It is the intent of the Legislature that a person who is in violation of this division may be subject to penalties pursuant to this division in addition to any other penalties that may apply for a violation of existing laws related to sexual conduct.
(c) It is the intent of the Legislature to codify and expand existing industry practice.
(d) It is the intent of the Legislature to make industry practice applicable throughout the state and not just in one city, as is currently the case.
25805. For purposes of this division, the following definitions apply:
(a) “Adult film production company” means any film production company whose primary that is in the business of is producing films for public distribution commercial purposes available to an individual or group of individuals depicting the performance or simulated performance of explicitly sexual acts appropriate only for an adult viewing audience. [Note: This is the language that will remove MPAA’s opposition. However, Leg Counsel does not have it, so this would have to be taken as amendments in Committee.]
(b) “Laboratory” means a laboratory licensed by the State Department of Health Services, or approved by the State Department of Health Services to perform tests for purposes of this division.
(c) “Health care provider” means what it does under current law for those who may administer tests for STDs, as specified.
(d) “Department” is the California Department of Health and Human Services
(e) "Performer" means any adult who is paid by an adult film production company to perform or simulate the performance of sexual acts.
(f) "Sexually transmitted disease" or "STD" includes, but is not limited to, all of the following:
(1) Chancroid.
(2) Chlamydia.
(3) Gonorrhea.
(4) Hepatitis A virus.
(5) Hepatitis B virus.
(6) Hepatitis C virus.
(7) Herpes simplex virus (HSV), also known as genital herpes.
(8) Human immunodeficiency virus (HIV).
(9) Human papilloma virus (HPV), also known as genital warts.
(10) Syphilis.
25810 . (a) (1) Prior to the beginning of any production, an adult film production company shall require each performer to be testedAdult film performers must be regularly tested to determine whether the performer has any STD. The decision on the frequency of screening, the type of tests, treatment, timing for any return to work, and the use of personal protective measures shall be determined by standards set by the Department of Health Services and Cal-OSHA using the best possible tests available. The adult film production company shall obtain the consent of the performer for the company to receive the test results.
(2) The tests shall be current, having been taken every two weeks or within two weeks of filming any scene in which the subject is not alone, whichever is more recent or as determined by the department. The testing frequency and typesof tests performed for STDs shall be determined by the Department and updated as needed to reflect new testing methods and scientific research.
(b) The tests for STD shall be paid for by the adult film production company and performed by health care providers who do (CLIA or state certified laboratory or to a laboratory), as defined in subdivision (b) of Section 25805 which does not have any other financial relationship, or any personal relationship, with the company or any performers.
(c) (1) The tests for STD shall be standard tests capable of detecting all of the sexually transmitted diseases listed in subdivision (e) of Section 25805.
(2) If available, the test for any STD that is utilized for purposes of this division shall detect infection at a two-week incubation period or lessbe state of the art and the most sensitive test available or other test as determined by the Department. For purposes of this paragraph, "incubation period" means the time between when a person is infected and when the test can be expected to identify the infection.
(d) The tests shall be submitted to a laboratory, as defined in subdivision (b) of Section 25805. The results of the tests shall be confidential. All positive tests for STDs shall be reportable as required under existing law.
(e) An adult film production company that fails to comply with subdivision (a) shall be liable in a civil action for any damages to any performer who is infected with an STD by reason of that failure.
25815. (a) An adult film production company that has been notified by a performer, or that receives test results pursuant to Section 25810 indicating, that the performer has, or has had, any STD, shall not allow the performer to perform in any production, unless the performer submits documentation from a physician that certifies that the performer is free from any STD.To prevent the spread and transmission of STDs, an adult film production company shall require that all performers use latex prophylactics (aka, condoms) and/or other barrier devices during any and all sex acts involving anal and vaginal intercourse and as otherwise determined necessary by the Department to reduce risk of transmission of an STD.
(b) An adult film production company that has been notified by a performer, or that receives test result indicating, that the performer has, or has had, an STD, shall not allow the performer to perform in any production unless documentation from a physician has certified that the performer has been treated, or else as allowed by the Department where personal protective measures are determined to be adequate to prevent further transmission of a STD.
(c) Should a performer have an incurable although controllable STD, the producer would have to inform the other cast members that someone on the cast – they wouldn’t even have to name names – has a controlled or controllable STD, and give them their options.
(d) The physician that certifies that a performer is free from any STD may not have any other financial relationship, or any personal relationship, with the adult entertainment business for whom the performer works or any performers in the production in which the performer works. Should an FDA-approved vaccine be available to prevent an STD all performers shall be evaluated and offered vaccination if deemed medically appropriate. Vaccination, when deemed appropriate to prevent an STD shall be paid for by the adult film production company and administered by a licensed medical provider.
(e) An adult film production company that fails to comply with subdivision (a) shall be liable in a civil action for any damages to any performer who is infected with an STD by reason of that failure.
25820. (a) A performer or adult film production company shall not falsify an STD test obtained for purposes of this division.
(b) (1) Any performer who is infected with an STD by reason of a violation of subdivision (a) by a performer may file a civil action against both the performer and the adult film production company.
( 2) An adult film production company may seek recovery from the performer who violated subdivision (a) for the costs of damages paid as a result of a judgment pursuant to this subdivision.
(c) Any performer who is infected with an STD by reason of a violation of subdivision (a) by an adult film production company may file a civil action against the adult film production company.
25825. The provisions of this division are severable. If any provision of this division or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.
