Related Policies
APHA policy statement 71-11: The right to a healthful work environment1
APHA policy statement 79-10: Reproductive health and rights of workers2
APHA policy statement 92-03: Support OSHA Reform and Strengthen Enforcement3
The American Public Health Association (APHA) is committed to eliminating health disparities through reaffirming its record of supporting reproductive health and ensuring the rights of workers to have a healthful work environment.1,2 Consistent with its mission to protect all Americans and their communities from preventable, serious health threats, APHA has advocated for the proper administration, delivery, and strengthened enforcement of the 1970 Occupational Health and Safety Act (OSHA), which requires employers to provide a safe and healthful workplace for employees.3
Occupational safety and health standards require the protection of all employees from bloodborne pathogens. OSHA’s Bloodborne Pathogen Standard applies to performers in the adult film industry.4 The federal standard requires employers to develop an exposure control plan, to use engineering and work practice controls to minimize or eliminate exposures, to provide and ensure that employees use personal protective equipment where hazards remain, and to provide training and medical services to employees who have occupational exposure.5 State plans may adopt their own regulations, but they must be at least as effective as the federal OSHA standard.
Background
The US adult film industry produces 4,000 to 11,000 films and earns an estimated $9 to $13 billion in gross revenues annually.6 California is the largest center for adult film production worldwide, although adult film production occurs throughout the United States. An estimated 200 production companies in Los Angeles employ up to 1,500 workers.7 Approximately 75% of all workers in the industry are female. Regulation of the industry has been limited to ensuring the prevention of child pornography through federal laws that explicitly prohibit performers under age 18.8 By contrast, the number of mainstream Hollywood motion pictures released per year is estimated at 500 to 550, and mainstream performers are protected by stringent union-enforced regulation.9
Throughout the course of their employment, adult film performers are routinely exposed to extreme and unhealthy working conditions, such as (1) multiple and concurrent sex partners over short time periods which increases risk of transmission and acquisition of sexually transmitted diseases (STDs) and HIV; (2) an industry trend toward riskier types of sexual contact, such as anal or double anal and penile penetration and internal ejaculation, which increases the potential for rapid spread of STDs; (3) prolonged intercourse that may result in inadequate lubrication and anogenital trauma or bleeding, resulting in exposure to semen, seminal and vaginal/cervical fluids, and blood; and (4) lack of condoms or other barrier methods for reducing exposure to infectious bodily fluids or fecal pathogens.10,11
An analysis of condom use by Grudzen et al. found that condoms are used only 3% of the time for penile–vaginal intercourse in the heterosexual industry.12 Since 2004, only 2 of the estimated 200 adult film companies in Los Angeles County required the use of condoms for all penile–anal and penile–vaginal intercourse, and that number has since dropped to 1.14 According to many workers, if they insist on using a condom in an adult film, they will not be employed.10 Lack of barrier protection significantly increases the risks to workers for acquiring and transmitting HIV and other STDs, which have serious health consequences for workers and the community.
Public Health Problem
STD and HIV Infections in the Adult Film Industry
STD and HIV outbreaks have been well documented in the heterosexual segment of the adult film industry. Data from 2004 through 2008 showed that 18% to 26% of performers were diagnosed with at least 1 infection of gonorrhea or chlamydia each year, 72% of those being among women.15 Nearly 25% of all STD cases among women were reinfections within 1 year, compared with 15% of women seen in family planning and STD clinics. When comparing performers to other Los Angeles County residents of a similar age range, the chlamydia prevalence among performers was more than 7 times greater and the gonorrhea prevalence was 15 times greater than typical Los Angeles County residents.
A study was conducted in 2010 to measure the prevalence of gonorrhea and chlamydia cases among adult film performers using expanded testing methods (C Rodriguez-Hart and PR Kerndt. Data from an unpublished study of STD morbidity in adult film performers, May–September 2010. Los Angeles County Department of Public Health, Los Angeles, Calif). One hundred eighty-two tests were conducted. Tests were conducted for chlamydia using rectal swabs, vaginal swabs for women, and a urine sample for men. Tests were conducted for gonorrhea using throat swabs, rectal swabs, vaginal swabs for women, and a urine sample for men. More than one quarter of performers (28%) were diagnosed with gonorrhea or chlamydia in at least 1 anatomic site, with 26% of women and 31% of men being diagnosed with either or both of these STDs. Gonorrhea represented a greater number of infections; nearly one quarter (24%) of performers were positive for gonorrhea at any site (30% of men and 22% of women). The anatomic site with the greatest prevalence of disease was the oropharynx, where 30% of performers were positive (23% of men and 20% of women). Gonorrhea of the urethra or vagina was found in 19% of men and 17% of women. In addition, 15% of women tested positive in the rectum for gonorrhea.
Performers who were younger and had worked on an adult film set within the last month were more likely to be infected. Thirty-four percent of 18 to 20 year olds were positive for gonorrhea or chlamydia, whereas 26% of 21 to 24 year olds as well as those 25 years and older were positive. Sixty-eight percent of performers had worked on an adult film set within 30 days of being tested, and nearly one third of them were infected. Most testing within the adult film industry is for gonorrhea and chlamydia through collection of urine samples only. The results of this study demonstrated that a substantial amount of STD infection is being missed by this testing method and that performers should be tested at all anatomic sites.
Although the total population of performers at any one time may appear small, they have a very large sexual network and serve as a bridge population for STD transmission to and from the general population.9 Former Surgeon General Joselyn Elders noted that performers serve as reservoirs of infection because they do not just have sex with each other, but also with people from the general population.16 During an outbreak of HIV among performers in 2004, the attack rate was 23% and the index case had 61 primary and secondary sexual contacts within 23 days.11 The Director of the Adult Industry Medical Clinic (AIM), which provides the majority of STD testing of performers, made the following statement: “An average popular male in the industry, through partner-to-partner-to-partner transmission, reaches approximately 198 people in three days. Those are epidemic proportions.”9 The average career of a performer is estimated at just 18 months, signifying that thousands of performers enter and exit this industry over the years.16
One study of performers in the United Kingdom found that three quarters of UK adult performers had at least 1 sexual partner outside of work, with whom 90% reported inconsistent condom use.17 The study also found that 38% of chlamydia and gonorrhea infections were detected only through pharyngeal or rectal testing. Performers in the United States are cleared to work based on a negative urine specimen, but they may still have an oral–pharyngeal or rectal infection, which most often is asymptomatic and can be transmitted to other performers unknowingly. Long-term complications of untreated STDs include morbidity and mortality associated with pelvic inflammatory disease, ectopic pregnancy, infertility, perinatal infections, and poor birth outcomes.18
Industry Practices
The industry’s method for responding to outbreaks of STDs and HIV among performers in the heterosexual segment of the industry is voluntary STD/HIV testing. Although testing can contain the spread of disease, it does not prevent its spread. Another limitation in the industry’s use of STD/HIV testing is the time period in which tests are conducted. The current industry practice is to test performers every 30 days; however, a performer could be exposed to an STD infection immediately after testing, have no symptoms, be highly infectious, and unknowingly transmit the infection to others. The 30-day testing requirement is not consistent with incubation periods for most STDs and may therefore miss detection of disease.
In addition, as noted previously, the current industry testing standard is to conduct urine-based tests for chlamydia and gonorrhea, but these infections are not routinely screened for orally and rectally. Oral and anal sex are common practices in the adult film industry and, as such, many cases of oral and rectally acquired chlamydia and gonorrhea are likely missed, with continual exposure and transmission of infections to others. Further, current screening among performers is not comprehensive. Additional STDs are not tested for, such as herpes, human papillomavirus (HPV), trichomoniasis, hepatitis A/B/C, and bacterial vaginosis, thus underestimating the true prevalence of STD infection in this population and the potential for continued acquisition and transmission of infectious diseases.
Gay Adult Film Industry
The frequent transmission of STDs among heterosexual performers and their outside sexual partners is not a concern for the heterosexual industry only. After the emergence of AIDS in the gay community, the gay adult film industry voluntarily adopted condom use, and, at one point, had condom usage rates much higher than the heterosexual film industry.13 More recent research has found that the practice of watching adult films in which actors do not use condoms, or “bareback porn,” among men who have sex with men (MSM), is on the rise and that the majority of MSM study participants regularly watched bareback adult films.23 This is especially concerning, given that STD testing, which is routinely conducted for heterosexual performers, is not commonly practiced among gay performers and it is more likely that gay performers are HIV positive.13 This study also found a significant, positive relationship between increased viewing of bareback pornography and engagement in unprotected anal intercourse, concluding that bareback pornography may have detrimental health effects not only for performers engaging in its production but also for those who view bareback pornography.
Current Public Health Recommendations
Public health officials have recommended that the adult film industry implement 3 key strategies for reducing the risk of STD/HIV transmission among adult film performers.20,21 The first is the mandatory use of condoms, per CDC guidelines that state the most effective measure for containing HIV transmission is the use of latex condoms, when used consistently and correctly.22 In addition, consistent and correct use of latex condoms reduces the risk of other STDs, including diseases transmitted by genital secretions, and to a lesser degree, genital ulcer diseases. Condom use may reduce the risk for genital HPV infection and HPV-associated diseases, for example, genital warts and cervical cancer. The second recommended public health strategy is appropriate medical monitoring, paid for by the industry, in which screening would occur at intervals consistent with exposure periods, along with screening of infected anatomic sites (e.g., urethra, vagina, oral cavity, rectum) where disease reservoirs may be present. Additional medical monitoring could include hepatitis A/B vaccine and postexposure prophylaxis for HIV, where indicated. The third recommended strategy is worker outreach to raise awareness about occupational health risks and to provide health and safety training for performers on STD/HIV risks in the industry. Training should also include prevention methods and workers rights, including how to file a complaint with OSHA if an employer violates workplace requirements for barrier requirements or a worker is exposed or injured in the course of employment.22
HIV Outbreaks
In 1998 and 2004, there were two large HIV outbreaks in the adult film industry in California. After the first outbreak, the industry responded by establishing a voluntary HIV testing program for all workers to test every 30 days. Despite monthly testing, 4 workers compliant with the testing regimen were discovered to have contracted HIV in 2004.23 After the 2004 HIV outbreak, the Los Angeles County Department of Public Health launched an investigation in conjunction with the California Occupational Health and Safety Administration (Cal/OSHA), the Centers for Disease Control and Prevention (CDC) Division of HIV/AIDS and the CDC’s National Occupational Safety and Health Administration (NIOSH). It was determined that all HIV cases were occupationally acquired.11,24 The outbreak demonstrated that screening for HIV alone, without requiring the use of condoms, is insufficient for preventing disease transmission. A worker could be exposed to an STD infection immediately after testing, have no symptoms, be highly infectious, and unknowingly transmit the infection to others. More recently, in October 2010, another performer who was acutely infected with HIV worked in at least 6 productions with 14 performers in the month before to his diagnosis (the time during which he acquired his infection and would have exposed the other performers). This case is currently under investigation by the Los Angeles County Department of Public Health.25
Since the HIV outbreak in October of 2010, industry members have maintained their position that self-regulation still works. Their response to this outbreak was similar to the 2004 HIV outbreak, which was to temporarily suspend filming while the industry-sponsored clinic that provides most of the STD and HIV testing for performers, AIM, claimed to notify and test all partners of the infected individual. AIM’s investigation, however, could not be verified because of the refusal by AIM to provide names, locating information, or test results to the health department for any of the exposed performers. Testing alone is insufficient for containing an outbreak. Notification with the immediate offer of postexposure prophylaxis, which has been shown to prevent HIV in people with known exposures, needs to be provided as soon after an exposure as possible.26
Cal/OSHA and Public Health Response
Before the 2004 investigation, Cal/OSHA had determined that California’s Bloodborne Pathogen Standard and Injury and Illness Prevention Standard applied to the adult film industry.27,28 After the 2004 outbreak Cal/OSHA developed a Web page for adult film. employees and employers to inform them of the requirements of these regulations and key elements of a model exposure control plan.21 The Web page explains that applicable control measures in this industry include (1) the use of engineering and work practice controls to eliminate occupational exposure to blood or other potentially infectious materials, such as simulation of sex scenes or ejaculation outside the partner’s body; (2) the use of protective equipment such as condoms and other barrier methods in the production of all films; (3) medical evaluation and follow-up at no cost to the employee if an exposure to pathogens occurs, such as HIV/STD testing, follow-up and providing hepatitis B vaccinations; (4) employer-sponsored training on bloodborne pathogens, how employees can protect themselves against infection, and what to do if they are exposed; (5) maintenance of confidential employee medical records; and (6) development of a written exposure control plan that contains a procedure for exposure incidents when an employee has contact with potentially infectious material.
In December 2009, a community-based HIV medical provider, AIDS Healthcare Foundation, submitted a petition to the California Occupational Safety and Health Standards Board (OSHSB) to amend California’s Bloodborne Pathogen Standard to clarify required protections for workers in the adult film industry and include a section that would specifically address health hazards in the adult film industry.29 An excerpt from the petition follows:
Although workers in adult films should enjoy protections under the current phrasing of the regulation, as well as the Board’s determination that adult film workers are employees, the adult film industry has steadfastly refused to take any steps to protect its workers from diseases spread by blood borne pathogens, resulting in thousands of employees becoming infected with sexually transmitted diseases. Clarification and enhanced enforcement of the rules are called for.
In response to the petition and after a hearing of the OSHSB in March of 2010, Cal/OSHA initiated 4 public statewide meetings between March and September of 2010 to discuss whether the regulations should be amended to specifically address the adult film industry. Two subcommittees were formed by Cal/OSHA on disease control measures and on medical issues; these consisted of health experts, industry personnel and talent, and other interested parties. Topics of discussion in these meetings included health hazards in the adult film industry and workable methods for addressing prevention and control strategies. Topics covered included the use of condoms and other barrier protection and simulation, risks associated with different routes of exposure to bloodborne pathogens and other STDs, how to identify these risks and implement controls for different sexual acts, issues related to the intermittent workforce, the provision of hepatitis B vaccine, training issues, postexposure prophylaxis, confidentiality issues, periodic testing, primary and secondary producers, and recordkeeping issues.
Continued Threats to Worker Health and Current Industry Practices
Despite repeated recommendations from local public health officials, Cal/OSHA, and a legislative hearing on how to make the adult film industry safer, industry practices remain unchanged.30–32 Vivid Entertainment Group, one of the largest producers of adult film in the United States, temporarily implemented a condom-only policy but then reversed itself.33 This switch to optional condom use occurred in 2006, after the institution of Cal/OSHA’s model exposure plan, indicating that the plan has likely had little or no effect on condom use in the adult film industry.8
After the latest HIV outbreak in October of 2010, Wicked Pictures, Hustler Video, Vivid Entertainment, and several other production companies temporarily suspended filming while the AIM clinic claimed to notify and test all partners of the infected individual as it had done in the prior outbreak in 2004.34 To date, AIM clinic has refused to cooperate with the health department by providing any information on the source individual, other performers exposed, or the production companies involved. The refusal to cooperate has compromised efforts for containing disease transmission or to offer or to initiate postexposure prophylaxis, which has been shown to prevent HIV in people with known exposures.
Flagrant violation of other Cal/OSHA worker protections remains. Performers must still pay for all STD screening tests—a violation of Cal/OSHA standards, which requires the employer to pay for medical monitoring. Further, to work, performers must take an STD/HIV test and furnish test results to their employer (production company) who posts and shares these results with other production companies in a database to which production companies and talent agencies subscribe. Performers with a negative test result can work, and those who are positive cannot work until they receive a negative test. This practice violates a worker’s right to medical confidentiality and is not consistent with the Cal/OSHA Bloodborne Pathogen Standard, which requires employers to maintain a confidential medical record for each employee. It also violates Health Insurance Portability and Accountability Act confidentiality laws that protect personal health information. Performers are also required to sign a waiver releasing the employer from liability if the performer contracts HIV or an STD in the workplace while not providing adequate protection through the use of administrative, personal, or engineering controls, as is required by Cal/OSHA.
As of January 2010, there have been 25 investigations since the 2004 HIV outbreak of workplace violations initiated by Cal/OSHA for infractions similar to those that led to the 2004 outbreak.35 Although some of these cases are still under investigation, citations have been issued for violations of the Bloodborne Pathogen and Injury and Illness Prevention Standards in 8 of these investigations. All citations were initially appealed, most citations have been settled, and no appeal has yet been heard by the OSHA Appeals Board.
Enforcement Challenges for OSHA
Nationally, although OSHA or a state-plan equivalent has jurisdiction over places of employment in each state, enforcement capacity is limited because of the small number of enforcement officials. Further, workers may be unaware of their rights or reluctant to file a complaint for fear of loss of employment or employer retaliation.8 In addition, OSHA is limited to regulating events that take place in the context of an employer–employee relationship, and thus it cannot regulate treatment of independent contractors. As in many industries, the adult film industry consists of employees and other performers who are treated as employees and others are treated as independent contractors, which creates challenges to universal enforcement of health and safety standards in the adult film workplace. Production companies have consistently argued that their performers work as independent contractors and, therefore, are exempt from OSHA and other labor regulations.
Enforcement Challenges for Local Health Departments
Local health departments monitor STD/HIV treatment and follow-up of exposed and infected people for disease investigation purposes. Local enforcement of the adult film industry, however, has been met with significant barriers, most notably in Los Angeles where the industry is primarily based. Disease investigators have routinely been unable to establish contact with exposed and infectious performers to initiate timely treatment and partner services and contain the spread of infectious diseases to performers and their partners. Some adult film industry testing centers, production companies, and talent agencies have not been cooperative in providing performer contact information to the local health department. This situation results in an inability by local health departments to identify the source of potential disease outbreaks and mount a rapid public health response when such outbreaks occur. Health departments need to be able to quickly identify people known to have been occupationally exposed to STDs/HIV for treatment, follow-up, and partner management to control further spread of disease to others in the community.
Another challenge in local enforcement of the adult film industry is that local health departments are hampered by state laws that require communicable diseases to be reported to the health jurisdiction in which the individual resides. The transient nature of adult film work often results in performers being diagnosed with a communicable disease in 1 health jurisdiction and then relocating to another jurisdiction before the local health department is made aware of the incident. As such, disease investigation and follow-up does not occur. In addition, local public health officials have also expressed concerns about the staffing resources needed to effectively monitor and enforce regulation of the 200 or more adult film production companies and have called for statewide legislation for this purpose.36,37
Nevada as a Model of Successful Regulation
The state of Nevada has demonstrated the feasibility of lowering STD rates among sex workers through strict regulations for its legal brothel industry. The mandatory use of condoms in brothels was instituted in 1988, and HIV testing became mandatory for brothel prostitutes in the state in 1986. The sex workers in brothels are tested for chlamydia and gonorrhea on a weekly basis and syphilis and HIV on at least a monthly basis. Since implementation of these regulations, not a single individual has tested positive for HIV while working in the brothel.38 Of more than 7,000 STDs tests conducted between 1982 and 1989 among brothel workers, only 20 positive STD cases were diagnosed, all of which occurred before implementation of the mandatory condom law (Unpublished surveillance data from the Nevada State Health Division, Office of Health Statistics and Surveillance. Overview of STD/HIV Prevention in the Brothels, 2010).
A prospective study of condom breakage rates among Nevada brothel workers found a breakage rate of 0.0%, suggesting that sex workers who use condoms consistently may develop effective methods to achieve lower breakage rates than other users.39 Because of the Nevada regulations, sex workers have become virtually free of STDs, and the few that do contract them do so primarily before entering the industry or from boyfriends and husbands when on leave from the brothel.16 Regulation of the Nevada brothel system is a feasible model for the adult film industry. Sex workers in both industries typically stay in the business for only a brief time, and they carry out similar types of work.16
Industry Response
Spokespersons for the adult film industry in California have consistently opposed regulation of health and safety standards for performers, even in light of the most recent HIV case. Steven Hirsch, CEO of Vivid Entertainment Group, has stated to media outlets the following three points: (1) audiences do not want to watch condoms and therefore companies will lose business if they have to use condoms; (2) as a result of the potential loss in revenue, the industry will go “underground” or leave California entirely; and (3) the industry’s voluntary testing program works well, given that so few people have tested positive for HIV.40,41 At a Cal/OSHA meeting with industry officials after the latest HIV outbreak, a leading attorney for the industry made the following statement:
The position advocated by the AIDS Healthcare Foundation [mandatory condom use] will place adult industry workers in a far less protected environment than they are in now and is sure to drive production to locations where there are no protections. Under current procedures, the incidence of STDs in the adult industry is significantly less than it is in the population as a whole.42
Currently, there are no large, representative studies of whether audiences would reject adult films if condoms were used. One of the longest running and largest production companies is Wicked Pictures, which became a condom-only company after the 2004 HIV outbreak.43 In addition, Brazil boasts an 80% condom usage rate in its adult films while still maintaining a large share of the international market as the world’s second largest adult film industry, suggesting that condom use in adult films does not have to erode profitability.13
Filming techniques can also be used to reduce the visual effect of condoms by using flesh tone–colored condoms or by digitally removing them after production.8 Joyce King, Vice-President of Wicked Pictures has stated that although the company is condom only, it does not support the mandated use of condoms, nor digital removal of condoms because of high costs. She also noted that sales are affected by condom use, adding that “this industry is largely based on fantasy and people don’t want to see condoms in their fantasies.”44
If condoms become mandatory, it is not likely that a legal, multibillion dollar industry would disappear. Distributors and production companies have become so entrenched in Southern California that it appears unlikely that they would move to another location or go clandestine.8 Adult film is now so accepted and widespread that it cannot easily escape regulation, especially now that it is so readily accessible on the Internet, cable networks, and in most major hotels. Industry representatives have also stated that the adult film industry brings revenue to California and that if the industry left the state, many people would lose their jobs.45 Many nonperformers in the adult film industry (e.g., camera crew, grips, editors) also work in mainstream Hollywood productions and would therefore not be likely to leave the state.46
In anticipation of likely regulation of the industry, The Free Speech Coalition, the industry’s leading trade association, developed a draft bloodborne pathogen exposure control plan for the industry to adopt.47 An excerpt reproduced here from the plan contains medically inaccurate information for preventing the spread of STDs/HIV among performers:
Performer work practice controls (p. 6):
At the end of each scene, the performers will stop and wash affected body parts to help reduce the risk of STDs. For example, if anal sex is performed on a female performer, the performers will stop at the end of this scene and wash affected body parts with appropriate sanitizing wipes (safe for human contact) before proceeding with the next scene. After oral sex the performer is expected to wash out his/her mouth with appropriate antiseptic mouthwash. This cleaning activity will occur at the end of each scene and prior to starting a new scene.
Regulation of Other Industries for Health Protections
In the health care setting, needle-stick injuries are a serious threat to the health of health care workers; in 2004 an estimated 600,000 to 800,000 of the nation’s health care workers suffered needle-stick injuries that can lead to infections with bloodborne pathogens.48 In 1999, OSHA revised the 1992 Bloodborne Pathogen Standard to include the use of safer devices.49 This revision was supported by the American Nurses Association but opposed by the American Hospital Association, which maintained that increased protection for health care workers from needle-stick injuries was unnecessary. Needleless delivery systems, like condoms on adult film sets, are a low-cost and effective way to reduce the transmission of preventable bloodborne pathogens to workers.
Impact of State Mandates on Improved Infection Risks in Other Settings
An example of how a state mandate has decreased infection risks in other settings is the example of tuberculosis control in California prisons. During the early 1990s, tuberculosis was a significant problem in California’s prisons.50 From 1992 to 1994, California’s penal code was revised to require additional control measures. Although each local jurisdiction is also required to have a communicable disease control program, there is less uniformity in these plans. Data from the California Department of Public Health, Tuberculosis Control Branch, for inmate cases of active tuberculosis in the state
