What Does Measure B REALLY Say About Condoms?

LOS ANGELES — If one looks at the propaganda that's been floated over the internet during the past month or so, it's clear that some people, even members of the adult industry, don't have a clear understanding of what Measure B will require performers to wear during on-camera sex acts... so let's go right to the sources and see what the real story is. Let's start with how the LA County Official Sample Ballot and Voting Instructions booklet describes Measure B: "Shall an ordinance be adopted requiring producers of adult films to obtain a County public health permit, to require adult film performers to use condoms while engaged in sex acts, to provide proof of blood borne pathogen training course, to post permit and notices to performers, and making violations of the ordinance subject to civil fines and criminal charges?" Seems simple enough: Performers have to wear condoms while performing sex acts—and of course, that's true as far as it goes. But then, people who believe that's all there is to it haven't read Measure B in its entirety, and although there are many things wrong with the measure, the focus of this article is on condoms—and what the Official Sample Ballot says is a lie by omission—as is the "Official Title and Summary" of what's called the "County of Los Angeles Safer Sex in the Adult Film Industry Act," Measure B's proper name. That summary says, in pertinent part, "The measure would require use of condoms for all acts of anal or vaginal sex during the production of adult films, as well as the posting of the public health permit and notice to performers regarding condom use." But is that statement supported by the full text of Measure B? No, it isn't. If one reads further into the section titled "Text of the Proposed Measure," one finds that the measure would add Chapter 11.39 to Division 1 of Title 11 of the Los Angeles County Code, and under Section 11.39.050 of the Chapter, "Exposure control plan," we find the first mention of something that will form an important part of this discussion: California Code of Regulations, Title 8, Sec. 5193—but we'll get to that in a moment. First, under Chapter 11.39's definitions, an "Exposure control plan" is defined as "a written plan that meets all requirements of Title 8 California Code of Regulations sections 3203 and 5193, to minimize employees' risk of exposure to blood or potentially infectious material," and that last phrase, Section 11.39.070 notes, "shall have the same meaning as defined in Title 8 California Code of Regulations Section 5193(b), or any successor regulation." Now, Section 11.39.050 is important, because in order to obtain the public health permit required under Measure B, a production company must first provide to the LA County Department of Public Health proof of that company's "successful completing of a blood borne pathogen training course that has been approved by the department for all principals and management-level employees of permittee, including but not limited to all film directors." [Section 11.39.080(A)(2)] According to Section 11.39.080, during the first year after Measure B has been enacted, production companies and individual producers will be issued a "conditional permit" and they will have "up to six months from the date of application to provide the department with proof of successful completion of a blood borne pathogen [BBP] training course that has been approved by the department." (Applicants applying after the first year must apparently present proof of their BBP training at the time they apply for the permit.) No problem so far, but wait: Under Section 11.39.110, titled "Permit—Suspension and revocation and fines," it says, in pertinent part, "Any permit issued pursuant to this chapter may be suspended or revoked by the department and fines consistent with the provisions of this chapter may be imposed by the department for a violation of this chapter and any other violation of law creating a risk of exposing performers to sexually transmitted infections, including any violation of ... California Code of Regulations Title 8, section 5193 ... The notice to comply shall include a statement of the deficiencies found, set for the corrective measures necessary for the permittee to be in compliance with this chapter, and inform the permittee that failure to comply may result in the imposition of a fine or other penalty, including suspension and/or revocation of any and all permits." So what does that mean, in simple terms? It means that if, upon inspection by the county health department, a producer is found to have been in violation of the laws and codes set forth in Section 11.39.110, including California Code of Regulations Title 8, Sec. 5193, the department can suspend or revoke that company's public health permit, and though a later paragraph of Sec. 11.39.110 allows the company to challenge that suspension, if the company fails to challenge it or fails to comply with, among other things, California Code of Regulations Title 8, Sec. 5193, that company's public health permit will be revoked or permanently suspended. And of course, a suspension or revocation of the public health permit means that the company may no longer shoot hardcore sex in Los Angeles County. The entire "Official Title and Summary" of Measure B can be found here. So, with all that in mind, let's see just what the requirements of California Code of Regulations Title 8, Sec. 5193 are. Sec. 5193 is titled "Bloodborne Pathogens," which subsection (b) defines as "pathogenic microorganisms that are present in human blood and can cause disease in humans. These pathogens include, but are not limited to, hepatitis B virus (HBV), hepatitis C virus (HCV) and human immunodeficiency virus (HIV)." Exposure to such pathogenic microorganisms can be controlled by "decontamination" or by "engineering controls," and Sec. 5193 briefly describes how each of those preventative measures can be implemented. Of course, Sec. 5193 was enacted to deal with bloodborne pathogens in medical settings like hospitals, clinics and the like, so there's plenty of discussion of how to handle contaminated "sharps" like hypodermic needles, scalpels and other medical instruments. And what could those instruments and other medical devices be contaminated with? Well, there's blood, of course, but there's also what are called "other potentially infectious materials," or OPIM for short. OPIM are defined in subsection (b) as, among other things, "[t]he following human body fluids: semen, vaginal secretions, cerebrospinal fluid, synovial fluid, pleural fluid, pericardial fluid, peritoneal fluid, amniotic fluid, saliva in dental procedures, any other body fluid that is visibly contaminated with blood such as saliva or vomitus, and all body fluids in situations where it is difficult or impossible to differentiate between body fluids such as emergency response." [Emphasis added] And how is one to avoid contact with those fluids? Well, one way is with "Personal Protective Equipment," which is defined in subsection (b) as "specialized clothing or equipment worn or used by an employee for protection against a hazard." In addition, the definition warns that, "General work clothes (e.g., uniforms, pants, shirts or blouses) not intended to function as protection against a hazard are not considered to be personal protective equipment." So, then, what "personal protective equipment" is required? Well, to find that out, one must scroll down to subsection (d) "Methods of Compliance," and under that, subsection (4), "Personal Protective Equipment." Title 8, Sec. 5193(d)(4)(A), titled "Personal Protective Equipment," reads, "Where occupational exposure remains after institution of engineering and work practice controls, the employer shall provide, at no cost to the employee, appropriate personal protective equipment such as, but not limited to, gloves, gowns, laboratory coats, face shields or masks and eye protection, and mouthpieces, resuscitation bags, pocket masks, or other ventilation devices. Personal protective equipment will be considered 'appropriate' only if it does not permit blood or OPIM to pass through to or reach the employee's work clothes, street clothes, undergarments, skin, eyes, mouth, or other mucous membranes under normal conditions of use and for the duration of time which the protective equipment will be used." [Emphasis added] So let's sum up, then, shall we? Does Measure B require performers to use condoms? You bet it does! But because Measure B requires that, in order for companies to keep their public health permits, they must also follow all of the regulations of California Code of Regulations Title 8, Section 5193, performers on adult movie sets must also use "[latex] gloves, face shields or masks and eye protection [goggles]" and any other personal protective equipment (like, for instance, dental dams) that prevents the blood or OPIM from reaching an employee's "undergarments, skin, eyes, mouth or other mucous membranes" like their eyes or nose—and considering that most adult performers are nearly or completely naked when performing, about the only "personal protective equipment" that truly satisfies the requirements of Title 8, Sec. 5193 are hazardous material—or "hazmat"—suits like the ones pictured above. Now, try making an adult movie with that requirement! If you need some help visualizing what such a movie might look like, go here. (The text of California Code of Regulations Title 8, Section 5193 can be found here.)