A Statement From FSC Executive Director Diane Duke
Dear Adult Industry Producers and Directors,
Shy Love has called a producer meeting about performer testing to be held at Penthouse on Tuesday, June 12th. FSC has not been invited to this meeting. Based on uncountable conversations with Ms. Love, we expect her to denigrate FSC’s testing program and promote a non-APHSS testing facility. To ensure that accurate information about the APHSS program and its protocols is disseminated, below is clarification of the three most critical components in question.
First, APHSS protocols require that all tests be ordered by a medical provider licensed to practice within the state. In many states,including California and Florida, a medical provider’s involvement is required by law. Under most states’ laws,clinical laboratories must obtain a request from a health care provider and can release test results only to the health care provider who ordered the test. In addition, patients in most states do not have the right to obtain their test results directly from a clinical
laboratory.
Moreover, a performer who tests positive for a sexually transmitted infection will need treatment for that infection. Continuity of care is critical for the health and well-being of performers. APHSS providers can immediately follow up with a performer who tests positive for Chlamydia or Gonorrhea for counseling, medical treatment,and eventually retesting.
It is highly inadvisable to rely on any testing provider which lacks a medical provider licensed by the state where the blood is being drawn. FSC can assist you in confirming whether any particular testing provider has such a licensed medical practitioner, or any other of the APHSS criteria.
Second, APHSS accepts the Aptima HIV-1RNA Qualitative Assay and the Abbot RealTime HIV 1 Assay HIV PCR tests. After considerable research and contact with infectious disease specialists,pathologists and physicians, APHSS determined that these two tests best meet the needs of our performer population. Both tests have the 9 to 11day window. The Aptima test is sanctioned by the FDA for detection and diagnosis of HIV. The Abbot test is sanctioned by the FDA to determine the viral load of HIV–the amount of the HIV virus present. While the Aptima has been FDA approved for diagnostic, the Abbot test has been identified by experts as an excellent option for the industry because of the doctor’s ability to know the value of the viral load. The purpose of the initial HIV test is to screen for the presence of HIV, not to diagnose. If a performer tests positive, an additional diagnostic test will then be administered–regardless of the initial test’s brand.
Finally, APHSS requires all providers to enter information for APHSS performers into our availability database. FSC board members Peter Acworth (Owner and CEO of Kink.com) and Christian Mann (General Manager of Evil Angel) oversaw the design and development of the database. The database has been built with several layers of security. In order to ensure performer privacy and to comply with HIPAA regulations (federal medical privacy laws), the producer/director’s database-interface displays only a performer’s availability for work – “Available” or “Not Available.” The database’s public interface contains no personal or medical information. This system was created to enhance performer privacy and reduce producer/director liability.
APHSS was created to fill the gap left by the closure of the AIM clinic. Without a comprehensive, coordinated program that is trusted by the industry, should a performer test positive,both performers and producers are highly vulnerable. Moreover, without a highly structured and successful performer health and safety plan, the industry has no viable alternative to government regulation. Therefore, in order to maintain standards and protocols for performer safety and health and in order to reduce legal and financial liability for producers, FSC created APHSS.
We are at a critical turning point for the APHSS program. APHSS has grown a great deal, but for the program to be fully functional, we need the whole industry to stand behind APHSS. The beauty of this system is,in the event a performer turns up positive,we will have a ready-made network in place. Through this network,we can test and care for any performers that may have been exposed and isolate that exposure protecting performers and significantly shortening production shut down time. We have spent a great deal of FSC time and money to create a working program for the industry and have not received additional funding from the industry or any other entity. Frankly,it will not make sense for FSC to expend any more of its resources if the industry is not 100 percent behind us.
We have created an excellent program – and now the ball is in your court. If producers, performers and directors are in support of FSC overseeing performer health and safety testing protocols and practices, then we need you to sign up. The alternative to FSC oversight is for producers, performers and agents to take on the responsibility of performer testing and safety-including any incidents of positive HIV tests. In our August meeting, FSC’s Board of Directors will review the program for its effectiveness and value to the industry.
If you want to ensure that APHSS will continue, sign up. Performers,directors and producers can go to APHSS.org and click “sign-up” to be led through a simple registration process. The program is currently free, but there may be a nominal cost for producers moving forward.
If you have any questions or wish to discuss the issue further,feel free to contact me at 818-348-9373 or
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FSC Response to AHF Signature Submission to Get Condom Initiative on L.A. County Ballot
Free Speech Coalition (FSC) today issued this response to AIDS Healthcare Foundation’s (AHF) earlier announcement (contained in the press release at this link http://www.marketwatch.com/story/condoms-in-porn-advocates-to-submit-360k-signatures-on-la-county-ballot-measure-2012-05-24).
AHF reported that they have submitted 360,000 petition signatures in a continuing effort to mandate the use of condoms on adult production sets in Los Angeles County.
FSC’s response is as follows:
Today AIDS Healthcare Foundation (AHF) announced that they have gathered 360,000 signatures to put a mandatory condom measure on the LA County ballot for November. What this announcement really means is that they have spent upwards of two million dollars on paid signature gatherers to get a useless bill in front of LA County voters. It is important that LA County voters understand the real issue behind AHF’s push for this unnecessary ballot measure.
In their press release, AHF stated that “the Measure is modeled on County's health permit process for tattoo and massage parlors and bathhouses.” The big difference with the adult film industry is that contact with the public occurs through television, computers and smart phones. There is no direct contact with the public so how can this be a public health issue?
A 152-page epidemiological profile on HIV/AIDS was distributed by the LA County in 2010. The sole purpose of the document was to provide guidance to LA County and non-profit organizations on the best use of their resources concerning HIV in LA County. Nowhere in that report are adult productions even mentioned. The report does identify the Latino population, African Americans, the un-insured, the under-insured and people in poverty, as areas of concern for HIV and targets for HIV resources. Imagine how many people could have been served with the millions AHF has already wasted on this ballot measure. Imagine how many will go unserved if the County is forced to waste its limited HIV resources on a problem that doesn’t exist.
Since 2008, 6300 new cases of HIV have been reported in LA County. None of the 6300 cases have occurred on an adult set. The rigorous testing protocols in place have resulted in a zero onset transmission of HIV for the past 8 years! One concern raised in the County’s epidemiological profile is the number of people in LA County who are walking around with HIV but are untested. Testing every 28 days, adult performers are the most tested population in LA County.
There are a number of nonprofit organizations that provide excellent education and services for the prevention and treatment of HIV/AIDS. Unfortunately AIDS Healthcare Foundation has lost its service focus and is now in the HIV "business" and will do or say anything to increase their fame and fortune. The County Condom measure is just their next and the latest “business” opportunity. |
Condom Ordinance Update – Part One
This is the first of a three-part series designed to clarify the mandatory condom regulation activity in the City of Los Angeles, Los Angeles County and the state of California. The purpose of this series is to provide up-to-date information to FSC Members and the industry at large: information on the status of current regulations, anticipated regulatory activity, and FSC plans for opposition.
What is the Status of the LA City Mandatory Condom Ordinance for Adult Productions?
Early in 2011, AIDS Healthcare Foundation (AHF) brought the issue before the Los Angeles City Council. The council voted down the proposed regulation because the City Attorney deemed that it was a state issue and that the city had no jurisdiction. On July 20, 2011, in an unprecedented act, CalOSHA sent a letter to the city of Los Angeles stating that the city does have jurisdiction because the city “does not seek to enact an occupational health and safety standard but rather a public health standard applicable to any film activity (regardless of employment relationship) within the city boundaries”.
On Thursday December 1, 2011, AHF submitted 70,000 signatures to the Los Angeles City Clerk’s office to put an initiative on the June ballot that would tie the provision of film permits with a regulation mandating condoms on adult production sites. It is estimated that AHF spent at least $350,000 for paid signature gatherers to get the initiative on the ballot.
Late December of 2011, the Los Angeles City Attorney filed suit against AHF arguing that putting the proposed initiative on the ballot would be too costly for the City--$4.4 million. Furthermore, the City Attorney argued that the initiative would be a waste of taxpayer funds because the jurisdiction rests at the state level and that the initiative is likely unconstitutional.
On January 10, 2012, the LA City Council chose to bypass the ballot and passed a city ordinance that ties the provision of film permits with the mandatory use of condoms on adult production sites. To clarify the contents of the ordinance, the ordinance applies to offsite shoots; shoots in sound stage do not fall under this regulation. There are no “adult” film permits, only film permits that include nudity. Film LA—the entity that grants permits—reports that it grants approximately 40 permits for shoots that contain nudity per month and many of those are permits for mainstream productions.
On Monday January 23, 2012, LA Mayor Villaraigosa signed the ordinance into law. The law went “into effect” March 5th. The City Administrator’s Office (CAO) has been tasked with developing a process for implementation.
The CAO has held two work group meetings gathering information from the Fire and Police departments as well as FILM LA. All of these entities reported that they do not have a structure set up that is conducive for this type of regulatory monitoring and enforcement. Moreover, FILM LA, FSC Board Chair Jeffrey Douglas and industry attorney Michael Fattorosi pointed out a number of Constitutional concerns with content-based enforcement.
At the last work group meeting, the City Administrator said that they will have another meeting of the work group prior to the May 16th City Council meeting where the CAO is supposed to report the results of the work group. As of this writing, no meeting of the work group is scheduled. Realistically, no prosecutions can take place until the City has developed a clear plan for implementation and a means of enforcement.
FSC will be at the upcoming meetings, speaking up for the industry. Additionally, FSC will continue to monitor the situation and update the industry as developments take place.
Stay tuned for part two where we will discuss the proposed LA County ordinance.
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FSC Responds to DOJ Call for Comments on 2257
CANOGA PARK, Calif. – Free Speech Coalition (FSC) has responded to a call by the Department of Justice (DOJ) for comments on 2257. A letter was sent to the DOJ on Tuesday in order to be ahead of Wednesday’s deadline for comments.
The action follows last week’s victory in the Third Circuit court of appeals, of the most recent 2257 lawsuit filed by FSC and 13 other plaintiffs. Last Monday, FSC received news that the court ruled to reverse the dismissal of the case, allowing the suit to continue in district court.
“Of course we hope that our comments and the comments of others will be taken in to consideration, but history suggests otherwise,” said FSC Executive Director Diane Duke. “That is why FSC was compelled to file suit against the Federal Government on the issue of 2257 and 2257A. Hopefully our recent win will bring us closer to resolution. Special thanks to Reed Lee, Lorraine Baumgardner, Michael Murray and Jeffrey Douglas for their excellent work in drafting our statement."
The letter details objections to the burdens placed on primary and secondary producers by 2257 and 2257a regulations, which govern age verification record-keeping for adult content producers.
FSC has opposed 2257 regulations since 2005, when the regulations were enacted, and continues to voice opposition on behalf of adult industry producers. Attorneys J. Michael Murray and Lorraine Baumgardner represent FSC and other plaintiffs in the current case filed against the DOJ. The suit, if successful, would strike down the current regulations, which place considerable burdens on producers to be in compliance, and which also presents a danger to the privacy rights of adult performers. |
2257 Decision Reversed on Appeal in Third Circuit
CANOGA PARK, Calif. – Free Speech Coalition (FSC) received news this morning that it won the appeal to the U.S. Third Circuit Court of Appeals, overturning an earlier District Court decision to dismiss the suit challenging the constitutionality of 18 U.S.C. § 2257 and 2257a. This allows the lawsuit to continue in the District Court.
The suit was originally filed by FSC and 14 other plaintiffs.
This decision represents a significant victory for FSC, the other plaintiffs and their attorneys, in opposing the regulations governing age verification record-keeping for adult producers and adult performers.
“FSC would like to thank our attorneys Mike Murray and Lorraine Baumgardner for their incredible work on this case thus far,” FSC Executive Director Diane Duke. “This decision is critical in three ways - it was unanimous, it supports the arguments that FSC has made all along and it supports the 4th amendment question included in our most recent challenge to 2257. This is a very important next step in our work to eliminate the burden from the adult industry of this onerous regulation.”
Attorneys Murray and Baumgardner represented FSC and the other plaintiffs in the suit, which challenged 2257 and 2257a on grounds that the regulations violate the First Amendment rights of adult producers and threaten the privacy rights of adult performers.
“We are thrilled today with the victory today, in the Third Circuit, reversing the District Court’s decision dismissing constitutional challenges to 2257 and 2257a,” said Murray. “We’re excited the Third Circuit agreed the First and Fourth Amendment claims are worthy and we’re looking forward to returning to District Court, where we’ll be in a position to put on evidence to demonstrate the constitutional infirmities of this burdensome statutory scheme.
“This represents a great victory for free speech rights and rights of privacy under the Fourth Amendment,” Murray added.
FSC has challenged 2257 regulations on behalf of the adult industry since 2005, when the regulations first came into effect.
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