Cal/OSHA Advisory Committee Hears Adult Industry Health Concerns

OAKLAND, Calif.—Just a few days less than a year since the Standards Board of the California Division of Occupational Safety & Health (Cal/OSHA) heard dozens of performers express their concerns over the Division's continued attempts to require all adult productions in the state to use condoms and other "barrier protections" in creating sexually explicit content, the newly (re)created Cal/OSHA advisory committee met to look at the subject once again—and this time, prominent members of the adult community were actually invited to participate—and with any luck, the Cal/OSHA attendees actually heard what they were saying. Ostensibly, the committee meeting was to discuss two competing petitions which had been filed with the Board: One, Petition 557, filed by AIDS Healthcare Foundation (AHF) and the other, Petition 560, by Free Speech Coalition (FSC)—but in fact, during the roughly six-hour hearing, the petitions themselves were barely mentioned. The meeting, which was held in a conference room at the Elihu Harris State Building in Oakland, was sparsely attended, in part because of its location far from the state's epicenter of adult production in Los Angeles, and in part because the industry was well represented by a group that included FSC Executive Director Eric Paul Leue, FSC Director of Policy and Industry Relations Siousxie Q, attorney Karen Tynan, physician Dr. David Holland, infectious disease specialist and Cutting Edge Testing Clinic director Peter Miao, talent agent and FSC Board member Mark Schechter, and the entire Board of the Adult Performer Advocacy Committee (APAC): Co-Founder/Chair Chanel Preston, President Ela Darling, VP Mickey Mod and Secretary Verta. Also on hand and generally supportive of the performers was Israel Nieves of the San Francisco Public Health Department. The AHF side was led by former Cal/OSHA attorney Suzanne Marria, and included epidemiologists Drs. Gary Richwald and Jeffrey Klausner, as well as AHF Director of Advocacy and Policy Research Adam Cohen and a somewhat surprising fifth member: Jennifer Ketcham, and who holds a master's degree in social work and is a former adult performer/director under the name Penny Flame. For Cal/OSHA itself, the committee members consisted of Nathan Schmidt, assistant chief counsel to the Standards Board and this session's moderator; Cal/OSHA Chief Juliann Sum, safety engineer Steve Smith, deputy chief Eric Berg, Standards Board executive officer Marley Hart, Standards Board senior safety engineers David Kernazitskas, Brandon Hart and Michael Horowitz. The day's discussion would consist of mainly four parts, including the question of whether adult performers are legally employees (and as such would be subject to Cal/OSHA regulations) or independent contractors or something else; whether it is necessary to amend the California Health Code, specifically Section 5193 which governs the state's bloodborne pathogen standards and contains the "barrier protection" requirement; whether additional safety precautions should be required, such as vaccinations for Hepatitis A and HPV, whether additional tests and/or use of pre-exposure prophylaxis (PrEP) should be required; and whether the current standards allow for adequate medical record confidentiality—though there was little talk of that last point, as discussions of the other issues ran well over the time allotted. Leue set the tone of the meeting early on when he noted that "The reason the Free Speech Coalition filed Petition 560 is very clear, because there is an understanding on the other side of the room that it is not necessary to talk to our industry. We've gone through this process for over seven years, and sadly we were not welcomed in the room; our views, the views of our workers, the needs of our workers were pushed aside and not listened to… "For us, what is important is that our workers are guaranteed rights and freedoms, control over their own bodies, that employers do not dictate sexual health choices, do not dictate the private lives of our workers and other things," he added. Leue stressed that scientific advances in healthcare had changed the discipline so greatly since the Health Code section was written in the early 1990s that Cal/OSHA was duty-bound to alter its predetermined policy, as stated on its agenda, that "all scientific data presented to and reviewed by Cal/OSHA shows that no alternative methods are at least as effective as barrier protection." Marria started the discussion of the legal status of adult performers by noting that through Petition 557, AHF wanted to insure that all adult employees get the "best possible protection" from sexually transmitted infections (STIs), that AHF supports Section 5193 but would be interested in resubmitting the proposed changes to that section that had been discussed at the February 2016 hearing as new Section 5193.1. Marria also claimed that based on two cases that had been heard by the Cal/OSHA Appeals Board, as well as a California Supreme Court decision, adult workers had already been deemed "employees" and were subject to the Cal/OSHA mandates—a claim that Leue described as an "alternative fact," the Kellyanne Conway phrase for "lie" that reportedly shot George Orwell's Nineteen Eighty-Four to the top of the Amazon best-seller list. There followed a long discussion of how performers are hired/cast in adult productions, with the industry side of the table being unanimous in stating that essentially, most power lay in the hands of the performers themselves, some of whom had personal corporations (LLCs) which dealt with producers. Particular attention was paid to performers "no lists"—lists which virtually all performers keep with names of other performers that they refuse to work with. Darling also brought up the fact, echoed several times during the discussion, that often, the performers themselves are producers in situations involving webcamming, content trades and sales on sites like Clips4Sale. Siouxsie Q referred to such entrepreneurs as "small business owners," and noted that in many cases, performers will only work with a spouse or long-time partner, negating the possibility of disease transmission between them. Verta stated that in her reading of the Cal/OSHA regulations, there is no definition of "adult industry employment," and Schmidt agreed. Marria then pointed out that nonetheless, Cal/OSHA had cited several production companies over the years with violation of the bloodborne pathogen (BBP) standard for failing to use barrier protections, and once again stated that the Appeals Board rulings in two cases, those of Treasure Island Media and "Echo Alpha," had settled the question of whether adult performers were employees. However, moderator Schmidt declared the legal decisions to be off-topic, and that part of the day's hearing was to explore just what performers' status is. Tynan added that the Supreme Court decision to which Marria had referred was several years ago and had involved farm workers (cucumber pickers), not adult performers. Cohen then asked for data as to how many adult performers are also producers, noting that at one point, APAC had said that 75 percent were—a figure Preston later corrected to note that 75 percent of APAC members were. "Performers are in control of what they do or don't do," stated Schechter, adding that they were free to decline offers to perform in movies, and once on set, had almost complete control of the mechanics of each sex scene—a point with which several performers present agreed. Leue questioned what type of content was under discussion—recorded content? Live cams? Clips?—and stated that the various types of content made the discussion "very complicated," and suggested that a future meeting include "whiteboard sessions," one for the industry, one for AHF, where each side would list its major arguments. He also suggested that APAC would be willing to help create a performer survey so the performers themselves could better express their own views on employment. Ketcham agreed that whiteboard sessions would be a good idea, stating that "We're all interested in safety," but noted that her perspective on the issue had changed from when she was a performer to now. Dr. Richwald threw in the observation, "You can't lab-test an LLC, only a person." The committee members had been supplied with a multi-page "summary document" from CalOSHA, and Marria used it to claim that according to the Division, several performers had not been hired because of their insistence on using condoms and that others had experienced "workplace violence in production." Leue called such claims "insulting" and irrelevant to the discussion, and later speakers—most notably industry veteran Julia Ann—noted that there's a difference between "workplace violence" and simply performing a sexual act (or in Ann's case, a BDSM scene) to which she had initially agreed but found off-putting in practice. However, Ann and several others noted, performers always have the ability to stop a scene if the action goes beyond their personal boundaries. The discussion then turned to how the Health Code might be changed regarding what testing should be required for performers, with all of the physicians weighing in to favor of adding some to the current regimen of nine, including throat and anal swabs to detect some bacterial diseases—and there was even more discussion about whether bacteria-based diseases should be part of a bloodborne pathogen regimen since they are, by definition, not bloodborne—and a large part of the discussion centered around herpes, which the AHF side favored testing for, while Preston noted that a recent study had found that 90 percent of all Americans had the disease already. Cohen referred to a 2017 study (apparently the final version of a report that AHF had presented to the Centers for Disease Control nearly three years ago) which claimed high infection rates of some STIs among the performer population, but Preston pointed out that of the clinics providing data for that study, one was an "urgent care" facility which was involved only in treatment of disease, and should not have been included. There was also a bit of discussion of the use of PrEP to prevent HIV infection, and all present agreed that proper use of PrEP had been shown to be highly effective—though the AHF side adamantly insisted that PrEP was no substitute for condom use—and Cohen issued a veiled threat to Schechter by claiming that under California's agency law, talent agents are prohibited from sending actors into an "unsafe environment," which he stated that non-condom sets are. The topic of "condom rash" was also much in evidence, with several performers noting that they had experienced it after long sex scenes, and later, during the "audience participation" segment, Dr. Hernando Chavez suggested that if the committee would like to get a feel for condom rash, they should rub their forefingers briskly along their forearm for 45 minutes straight—and they could even use lube! As part of the discussion of medical record confidentiality in the industry, Leue was called upon to explain how the industry's PASS system works, and he made it clear that only performers and the clinics they test at have access to the performers' test results, though it is common for the actors to share such results with the scene partner(s). It was noted that part of the discussion of proposed Section 5193.1 was a requirement that producers pay for talent testing, and Leue informed the committee of FSC's subsidy fund which currently reimburses performers for part of their testing expenses, and that plans were currently underway to expand that program. There was also discussion about whether Cal/OSHA should oversee performers' testing records as part of "medical surveillance," though Dr. Nieves felt that was only necessary in the case of active infections. Schmidt then opened up the floor for audience comments, and the speakers were almost entirely supportive of the adult industry's positions—except, of course, AHF employee Whitney Engeran-Cordova and patient Derrick Burts. Among those who spoke were Treasure Island Media casting director Kevin Kintero, director Mr Pam, directors/producers/performers Five Star, Carla Lane, Jonni Starlight and Riley Reyes, performers Ruckus, Sam Solo, Coco Kitty, Isabella Sorrentini, Stefani Special, Nikki Darling, Marcello and Julia Ann (who noted, "I have to medicate every time I use a condom" and that it takes a minimum of five condoms to shoot a scene), as well as married couple Alice and Justin Wilson (Alice: "Forcing us to wear condoms is forcing us to put something between us that we don't want and don't need"). Of particular note was a speaker identified only as Rachel, who worked in the industry as performer Ava Taylor and who was one of the main characters in the pseudo-documentary Hot Girls Wanted, who opined that producers actually cared little about healthcare, that the "underground" adult industry already exists, and that her agent often ignored her "no" list when booking her for production. Others who commented in support of the industry included former performer and sex worker Alex Sebastian Morgan, industrial hygienist Steve Derman and lobbyist Kevin Bland. Pictured: The adult industry members of the Cal/OSHA advisory committee.