Cal/OSHA Sends Condom Rule to Committee ... Again

WALNUT CREEK, Calif.—After hearing more than an hour of public comment from members of the adult entertainment industry and its opponents, the Standards Board of the Occupational Safety and Health Administration (Cal/OSHA) voted this afternoon to send both Petition 557, filed by AIDS Healthcare Foundation (AHF), and Petition 560, filed by Free Speech Coalition (FSC), to an advisory committee to be set up by Cal/OSHA administrative personnel. While that would appear to be a positive outcome—the Board could have voted to accept either Petition as presented—comments voiced by several Board members struck an ominous note. For one thing, it was noted that AHF's petition was "substantially identical" to Petition 513, also filed by AHF, which led to the Cal/OSHA public hearings that began in 2009, and it's unclear what would be left to be discussed regarding the two petitions. However, it was the ruling of the Board that the "substantially identical" petition be given a closer look "with stakeholder involvement," meaning input from the adult industry itself, "to consider amending or expanding upon Title 8, Section 5193, to address the risks of employee exposure to bloodborne pathogens and STDs in the adult film industry." The same was decided regarding the FSC petition, though the Board made clear that the wording of each petition was not at issue, but rather "to look at the issues in their entirety." But as the Board's Executive Officer Marley Hart made clear, "the Board does not have the option of adopting a standard less effective in protecting employees in the adult film industry than does the existing federal standard broadly applicable to occupational exposure to blood or other potentially infectious material. That was determined prior, that's something the Board has discussed before, and so we recognize that but we also recognize that there's value moving forward to discuss issues, and respecting that, there's still the need to address STDs that are not spread through blood contact." The clear meaning of Hart's statement is that of all the things that the advisory committee will be tasked with doing, one of them will not be whether condom use in adult content production should be optional. This was particularly brought home by the Board's final statement on the subject, delivered by Chair Dave Thomas, who said, "I don't personally care what anybody says on the advisory committee, but I'm going to say it again, and people may not like it, but it's the law already. It doesn't matter, it's already the law: You're supposed to use condoms. They don't. They don't want to use them. You know what: So what? You're going to have to get over it. It's gonna happen. It's already the law unless the feds change their view on this and their regulation, we're gonna have to comply. So I know we're playing games, but we're gonna do it and something's got to get done about this, and we're not going to just continue to sit on this regardless of what people think. It's already the law; I already said that." At that point, the entire Board voted to send the petitions to the soon-to-be-formed advisory committee. Regarding the advisory committee, attorney Karen Tynan, who represents several adult industry entities, noted that the committee will meet at least once in Oakland and once in Los Angeles. However, when asked how the members of the advisory committee would be chosen, Tynan said, "We don't know yet, but we know that everyone can attend the meetings, and the meetings will be public. What I found most intriguing and what pleased me the most was that [Board members] Dave Harrison and Barbara Smisko wanted a creative approach; they wanted the advisory committee to really work versus just a ratification of certain language. And that's what I liked. What I did find disturbing was when Chairman Thomas said, 'I don't care what happens in the advisory committee meetings.' That, I found, to be disturbing, disrespectful, and I hope that he was speaking off the cuff and that is not how he truly feels!" Check back with AVN.com tomorrow for a more complete recounting of the ideas presented during the Standards Board hearing, including remarks from such adult industry luminaries and supporters as Julia Ann, Ela Darling, Arabelle Raphael, Mona Wales, Mr Pam, Ariel X, Brock Doom and Dr. Hernando Chavez, as well as a surprising opponent of the industry's position, Jennifer Ketcham, formerly known as the actress Penny Flame.