AHF 'Barrier Protection' Ballot Measure: Analyzing the Analysis

SACRAMENTO, Calif.—On March 3, the California Legislature's Legislative Analyst's Office performed an analysis of the California Safer Sex in the Adult Film Industry Act, a ballot initiative proposed by Michael Weinstein in his personal capacity, since his cover letter to Attorney General Kamala Harris lists only himself as the Act's "proponent." And while that analysis points out several of the problems that would be created by the initiative's passage, it misses several of them as well. For example, in the opening section, "Adult Films Affected by This Proposal," the analyst notes, "A wide variety of films, videos, and other entertainment may be considered in common usage to be adult films. This proposal would not apply to all adult films. The proposed measure would apply only to specified recorded, streamed, or real-time broadcasts of sexual intercourse." Indeed, the initiative itself defines "adult film" as "any recorded, streamed, or real-time broadcast of any film, video, multimedia, or other representation of sexual intercourse in which performers actually engage in vaginal or anal penetration by a penis." [Emphasis added] That, of course, means that all movies featuring only women, and all movies in which the only sexual activity is oral, are excluded from the definition, and performers in such movies would not be required to use condoms or what the initiative refers to as "any other reasonable STI prevention engineering controls and work practice controls," although movies that did contain vaginal or anal intercourse would be required to do so. Such "work practice controls," according to California Health Code Title 8 Sec. 5193 (which is where a court would be likely to go for such a definition) would include, but would not be limited to, "gloves, gowns, laboratory coats, face shields or masks and eye protection," and would not be considered adequate if "it does not permit blood or OPIM [other potentially infectious material] 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." The analysis then considers who would be affected by the initiative if it became law, and correctly notes that, "Various businesses that produce and distribute adult films are located in California, including some of the largest such businesses in the world," and that "The adult film industry employs several thousand people in the state, although many are only employed on a part-time basis." And while the analyst was, not surprisingly, unable to find reliable numbers on the size of the industry or the number of workers in it, "Based on the available data, we assume that the economic activity directly related to adult film production in California ranges from hundreds of millions of dollars per year to, at most, a few billion dollars per year." And while "a few billion dollars per year" may be chickenfeed compared to some of the bills the office is required to analyze, to most people, that's a sizeable sum ... which generates sizeable tax revenues to the state. The analyst next states that adult performers are exposed to a variety of STDs, though s/he makes no mention here of the industry's testing protocols, which have been highly effective in keeping infected performers from working until they're cured. However, s/he then goes on to say, "The Los Angeles County Department of Public Health has reported that the incidence of gonorrhea and chlamydia infection among adult film performers is significantly higher than among the general population of Los Angeles County residents aged 18-29." Trouble is, those statistics have been called into serious question at least three times: Once in 2011 when epidemiologist/biostatistician Dr. Lawrence S. Mayer issued a report at the request of AIM Healthcare regarding the county's methodology in calculating infection rates; and again, when AHF-affiliated health officials released a study in November of 2012 that contained several obvious errors; and finally, there's the (possibly still) unpublished study that AHF used at a CDC STD Prevention Conference in June of 2014, which also contained enough errors and inaccurate suppositions as to render it medically useless. In the following section, the analyst implies that considering existing CalOSHA regulations, including Health Code Sec. 5193, the ballot initiative may be duplicative of regulations already in place—which AHF is well aware of—and states explicitly, "State officials previously have held advisory discussions with interested parties concerning occupational health and safety in adult film workplaces and are currently drafting a new proposed regulation. As a result, it is possible that by the time this measure could be placed on a statewide ballot there will be new state occupational health and safety regulations for the adult film industry." S/He notes that the legislature (at AHF's behest) has tried to pass legislation similar to the proposed initiative, which legislation has been defeated every single time. S/He also notes that L.A. County voters passed AHF's Measure B, also very similar to the ballot initiative, and that that measure is still in litigation, though s/he notes that some parts of it have been upheld at the appeals court level. "Additional litigation related to Measure B seems likely," the analyst notes. "Whether Measure B will be enforced on a widespread basis is unclear." S/He might say the same regarding litigation surrounding the proposed ballot initiative: It's in for a long court fight both before the election and, if passed, afterwards as well. The following section, titled "Testing Regimen Preferred by Parts of Adult Film Industry," includes the following caveat: "[M]any adult film producers and performers reportedly prefer to make films without condoms or other protective equipment. Parts of the adult film industry instead have developed regular testing protocols intended to demonstrate that all performers in a production are currently free of certain infections." Indeed; the PASS system works pretty well—so well that just last week, it cleared a performer who had falsely tested positive for HIV within 24 hours. In the "Proposal" section, while noting that "Any adult film performer or any individual residing in California who complains to Cal/OSHA about a potential violation would be able to file a civil action if Cal/OSHA does not initiate an investigation within a specified time period," the analyst fails to recognize the import of this clause. What it means is that anyone in the state of California could bring an OSHA complaint or, if that is denied, a civil lawsuit, which would almost automatically become a class action suit, against any adult producer or talent agent for any suspected violation of the Act. Expenses related to such suits could easily run into the hundreds of thousands if not millions of dollars—and considering that AHF itself filed complaints which turned out to be bogus against Treasure Island Media, leading to a five-year court battle which eventually exonerated TIM for most of the so-called "health violations"—because the movies complained about were shot outside California, and outside CalOSHA's jurisdiction. Now multiply that screw-up by a couple of hundred (or thousand) and imagine how clogged California's court system will be. The report also fails to deal with the fines that would be imposed on alleged violators of the initiative, should it become law. For example, simply "knowingly" violating proposed Labor Code Sections 6720.4(a)(2) or (a)(3) can be punishable by a fine of up to $70,000 per incident, and if a Code violation results in "permanent or prolonged bodily impairment[] to the adult film performer," the producer could be hit with a fine of up to $100,000—and if the producer is a corporation, with a fine of up to $1,500,000. So, for example, if a performer were to contract herpes, an incurable disease, on an adult movie set, a court could easily find that that infection is a "permanent or prolonged bodily impairment" and fine the producer accordingly. But the real dirt on the initiative is found in the "Fiscal Effects" section of the report. "[I]n response to Measure B and previous state legislative and regulatory discussions concerning their industry, some adult film production that otherwise would have occurred in California may already have been relocated to other states or countries," the report states, adding, "Should this proposed statutory measure become state law, other parts of the adult film industry likely would respond by either relocating outside of California in order to avoid or protest the law’s requirements or continuing to make adult films in California while seeking to evade state and local law enforcement"—just as they currently do, as evidenced by the fact that the City of L.A.'s adult film permitting has dropped over 90 percent since the city's own (AHF-composed) condom law was put into effect. [Emphasis in original] "As a result of such industry responses to the law, tens of millions or hundreds of millions of dollars of annual economic activity and hundreds of full- and part-time adult film industry jobs likely would be (1) eliminated from the California economy or (2) “driven underground” in the California economy, thereby evading state and local regulation and, potentially, taxation." (No "potentially" about it: tax revenues will decrease—substantially—with virtually no effect on the health of performers!) "Some adult film industry employees and contractors may (1) move out of California following the relocation of parts of their industry out of the state, (2) find new jobs, or (3) become unemployed," the report continues. "In total, these changes likely would reduce annual state and local tax revenue by millions or tens of millions of dollars per year." (Our guess: Closer to "tens of millions.") And how will the state deal with those decreased revenues? Why, be required to spend even more!: "The ongoing state government costs to implement and enforce this law are likely to be a few million dollars annually." Sadly omitted from the report are the costs attendant to installing Michael Weinstein as, essentially, California's "Porn Czar," at an as-yet-undetermined salary, and with almost unbreakable "job security" unless both houses of the legislature vote that there is "good cause" to remove him. So what's the bottom line? The Legislative Analyst spells it out pretty clearly in the report's concluding paragraph: "This measure would have the following major fiscal effects: "Potentially reduced state and local tax revenue of millions or tens of millions of dollars per year. [In our view, no "potentially" about it.]"Likely state costs of a few million dollars annually to administer the law."Possible ongoing net costs or savings for state and local health and human services programs." [Less "possible" since most adult performers use their personal physicians rather than county or city health services.] The Legislative Analyst's report can be found here—and it should be required reading for anyone thinking about voting for the California Safer Sex in the Adult Film Industry Act.