Proposition 60 – Condoms Required In Adult Films – How is this still a thing?
Proposition 60 requires adult film (pornography) producers and talent agencies to mandate the use of condoms in any films involving actual intercourse, requires producers to pay for existing STD testing, requires extensive reporting obligations for those, requires bi-annual licensure and associated fees through Cal/OSHA, grants standing and a right of action to every film actor to sue on their own behalf, every film actor to sue on behalf of any other actors, and to every California resident who wishes to file an enforcement action in place of Cal/OSHA, against a producer or talent agency. The proposal sets forth not only a complex set of compliance rules but an even more complex set of fines and penalties for various violations, with one provision allowing a penalty of $1,500,000.00, all stuffed into six full pages of tiny text.
This Isn’t A Thing.
We might delve more carefully into this statutory morass if we could verify a burgeoning health crisis of adult film related STDs (most notably AIDS). Not only can’t we verify such a crisis, our sense that that condom usage should probably be mandatory if your job is shtooping turns out to be dead-on:
“Cal/OSHA considers exposure to certain body fluids a workplace hazard. This is because harmful sexually transmitted infections (STIs) . . . current state regulations generally require employers to provide and ensure that their employees use protective equipment to prevent contact with certain body fluids in the workplace. In enforcing these regulations, Cal/OSHA is requiring performers to use condoms during sex on adult film sets. Cal/OSHA generally enforces these rules by responding to complaints. Over the two-year period of 2014 and 2015, Cal/OSHA cited four production companies for violations of these regulations.”
Sooooo, where’s the problem we are solving exactly? We had trouble documenting it, but the State Legislative Analyst does conclude that some production companies do not comply with the existing law. That unsupported observation, however, does not strike us as a crisis that requires the legislative hammer of a massive set of regulatory requirements imposed by initiative. Perhaps that is why 17 major editorial boards that analyzed Proposition urged a “no” vote while only one came out in support.
We often don’t mind creating private causes of action to aid enforcement. In a political climate where the electorate does not want to pay for government enforcement work, we often feel that private enforcement actions create an efficient way of providing regulatory control where there are insufficient funds to allow government to perform that task. However, the mechanism and the fines proposed here are, to say the least, extreme. We are unaware of any civil statutory scheme that allows a court to impose a $1.5 million dollar fine as is proposed here. We think that mechanism is so extreme that the arguments by opponents that some industry participants may flee California rather than bear this risk (arguments we commonly ignore as warnings that “the sky is falling”) might actually be valid here. We also are unconvinced that California’s broad Business & Professions Code 17200 would not allow individuals who were actually harmed by violations the right to privately enforce code violations if they see fit. But even if that remedy does not exist, we simply see no indication that there is a widespread problem here that requires such extreme action. The sole editorial board supporting Proposition 60 acknowledges some of these problems (though we doubt they read the text discussing the fine structure) but largely dismisses them without analysis, urging readers to “get over it.” Unconvinced, we choose not to.
Instead we join the chorus of considered opinions, including “[m]ost mainstream AIDS organizations and both major political parties in California” and urge a “no” vote.  The requirement that condoms be worn in adult films already exists, this Proposition just dramatically increases the bureaucratic obligations and installs a series of broad private rights of action (lawsuits) incentivized by astronomical potential recoveries. Proposition 60 touches on important issues, but its approach is heavy-handed and is not proportionally tailored to a particular problem. In sum, it is an extreme solution searching desperately for a problem, and ultimately makes for bad policy.
Recommendation: Strong NO