Dennis RomeroL.A. County's mandatory condom law for porn stars has seen adult film permit numbers plummet and production flee to places like Las Vegas and Miami.
But this week Nevada state health officials said not so fast.
The Nevada Department of Health and Human Services and the Nevada Occupational Safety and Health Administration issued a joint statement that basically says health officials in the Silver State agree with their counterparts at the California Division of Occupational Safety and Health (Cal/OSHA) that condoms should be required equipment for porn stars.
Citing federal law that mandates employee protection against the spread of blood-borne pathogens at the workplace, the statement says:
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Nevada’s OSHA laws contain regulations pertaining to the spread of infectious blood borne pathogens which can cause disease in humans, including HIV, hepatitis B, and hepatitis C. The law requires employers to protect their employees who are occupationally exposed to blood or OPIM [Other Potentially Infectious Material].
Cal/OSHA has long interpreted the federal mandate against blood-borne-pathogen transmission at work to mean that adult performers must use condoms.
Nevada health officials don't come out and say prophylactics are the law, but you can read between those lines (above).
For the most part, Cal/OSHA has weighed on alleged violators only when they've been brought to its attention, usually by the L.A.-based AIDS Healthcare Foundation. So enforcement has been so hit and miss that the industry has largely ignored Cal/OSHA's condom mandate in the Golden State.
The AHF spearheaded both L.A. city and L.A. County condom laws, the latter of which was approved by voters in 2013, which explicitly require prophylactics in local porn.
The industry, which argues that its audience doesn't want to see condoms, has responded by pulling out of its longtime production home of Los Angeles, at least on the surface.
Nevada has become to porn what L.A. is to the NFL, a perpetual threat for a home base that won't do as told. For NFL teams, Los Angeles has been valuable as an NFL-free market because owners can threaten to move here unless taxpayers build them stadiums at home.
Nevada is the place most often cited as the future home of an adult video community unhappy with prophylactic rules.
The industry says that condom requirements will push production out-of-state and underground, where performers would be less safe. It says its twice-a-month performer testing protocol, which is purely voluntary, works.
Credit: Vix_B/Flickr
Except that it didn't appear to work in fall when a male performer who had tested negative passed the HIV virus on to another performer on-set in Nevada, according to the Cal/OSHA.
That incident has Nevada health officials investigating how this happened, according to the joint statement:
Nevada has taken a proactive multi-agency approach to worker safety issues and communicable disease prevention in relation to the AEFI. Nevada OSHA has an open investigation related to a complaint of the AEFI [adult entertainment film industry] and a possible “Other Potentially Infectious Material (OPIM)” incident during filming in Nevada.
… From a communicable disease prevention and control standpoint, local and state public health agencies in Nevada and California are working together to identify and investigate possible incidents of disease transmission related to the AEFI and opportunities to modify disease control laws to reduce the risk to AEFI workers. As is noted in the 2010 report from the American Public Health Association entitled, Prevention and Control of Sexually Transmitted Infections and HIV in the Adult Film Industry, Nevada’s strict regulations of sex workers in brothels has resulted in no HIV transmissions in that setting. Nevada is determining if similar law is appropriate for the AEFI.
Indeed, a spokeswoman for the Nevada Division of Public and Behavioral Health told us that a news report indicating the state wanted to regulate porn productions in the same way brothels are overseen was untrue.
She said the two are apples and oranges because brothels are confined to specific, rural areas of the state and are outlawed in places like Las Vegas, a hot spot for adult video shoots.
Here it's interesting to note that California and New Hampshire are the only states that specifically allow porn production. If you look at it, porn is a form of prostitution: People are being paid to have sex. But in the Golden State, if it's on camera, it's art and free expression.
Nevada authorities have yet to respond to that aspect of adult video. The AHF says maybe Nevada should regulate porn like it oversees brothels, calling it “a no-nonsense move.” The organization's president, Michael Weinstein:
In the twenty-seven years that Nevada has required condom use in its brothels, there has not been a single case of HIV transmission found in, or tied to Nevada brothels. By comparison, since 2004, public health officials—including CDC officials—have documented on-set transmission of at least four HIV infections in performers while they were actually working on adult film sets.
Diane Duke, head of the adult industry's trade group, the Free Speech Coalition, told us brothel-type regulation is unneeded because the business regulates itself:
Workers in Nevada brothels are required to use condoms because they have contact with an untested public. This is entirely different than the adult film industry in California, where performers are working with a database of other performers who are tested every fourteen days.
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