Will California's proposed condom regulations ruin porn?

The Porn Industry Says It’s About to Be Ruined by California’s Condom Regulations. Is That True?

The Porn Industry Says It’s About to Be Ruined by California’s Condom Regulations. Is That True?

The Slatest
Your News Companion
Feb. 18 2016 2:53 PM

The Porn Industry Says It’s About to Be Ruined by California’s Condom Regulations. Is That True?

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Disgraced porn actor James Deen has said that mandating condoms in porn is "a huge violation of my rights as an American citizen." (A federal appeals court disagrees.)

Pascal Le Segretain/Getty Images

Update, Feb. 18, 2016, 8:15 P.M. ET: California's safety board rejected a condom mandate for adult films on Thursday, but a similar initiative will appear on a statewide ballot measure in November.

Original post: On Thursday, California may finally wrap up its longstanding debate over whether porn actors have to wear condoms. Following a hearing in Oakland, California, the state's Division of Occupational Safety and Health will vote on whether to adopt new regulations that would require porn actors to wear protection whenever they engage in sexual activity that puts them at risk for infection. If passed, the new regulations would take effect this spring. 

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Porn has long had a vexed relationship to latex. The industry is still lamenting the passage of Measure B, the local law passed by Los Angeles voters in 2012 that required all adult film performers in the county to wear condoms during vaginal and anal sex. (That law, led by Michael Weinstein of the AIDS Healthcare Foundation, laid the groundwork for the current proposed guidelines.) In both cases, the industry has argued that the condom requirement won’t make porn actors any safer; foists an undue burden upon producers; and will, in the case of Measure B, "destroy the adult film industry.”

Are they right? Let’s look at each of these claims one by one.

Claim one: Our testing keeps our actors perfectly safe already, thank you very much.

Right now, the industry requires that actors undergo lab tests for sexually transmitted infections every two weeks. However, that testing has not been enough to stop the spread of HIV. The reason: These tests often don’t detect the AIDS virus in its early stages, and in fact, can fail to detect it in an infected individual for up to 10 days. The Centers for Disease Control and Prevention recently documented one male porn actor in California who infected two other male actors after receiving a negative test result in 2014. According to the report, at the direction of his production company, the actor did not use condoms in subsequent performances.

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The proposed condom requirements are “unworkable” and “based in fear and stigma, not science or public health," said Eric Paul Leue, executive director of the industry trade group the Free Speech Coalition. The CDC begs to differ: "Adult film performers and production companies, medical providers, and all persons at risk for HIV should be aware that testing alone is not sufficient to prevent HIV transmission," the CDC wrote in its report. “Condom use provides additional protection from HIV and sexually transmitted infections.” A 2014 study from the UCLA Fielding School of Public Health, which looked at 366 porn actors, found that 23.7 percent had gonorrhea or chlamydia.

Claim two: These regulations will ruin everything that makes porn, porn.

Attempts to "force mandatory condoms into adult film" will damage adult film sales, say porn industry officials. "Viewers out there don't want to see movies with condoms," as Steven A. Hirsch of Vivid Entertainment told the L.A. Times in 2012. But these regulations, they say, go further than mandating rubbers. They could also mean that actors have to wear goggles, gloves, and dental dams during intimate scenes. “It’s going to turn into surgical porn,” says Leue. 

To be clear, that's probably an exaggeration. “That’s pure fantasy," says Weinstein.

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Another fear may be more warranted: That the new regulations would alter the way the industry portrays so-called money shots. According to the proposed guidelines, “all bodily fluids shall be considered potentially infectious materials.” Thus, producers must limit ejaculation to “surfaces other than the genitals, eyes, mouth or other mucous membranes or non-intact skin of another person.” 

Claim three: The porn industry will move out of the state, and then you’ll be sorry.

Well, they may be right about this one. The measure requires film producers to pay for vaccinations and medical testing, as well as get a state health license before filming. And yes, losing this lucrative industry would have economic ramifications to the state, reports the Washington Post. A condom mandate "could cost the state tens of millions of dollars in lost state and local tax revenue," says the Post, reporting on the potential impact of a similar measure to the OSHA regulations that will be on the California ballot in November. "It also probably would cost a few million dollars annually to administer.” 

We’ve already seen the beginnings of the porn exodus in Los Angeles. A decade ago, economists estimated that porn production in the San Fernando Valley generated 10,000 to 20,000 jobs annually and had $4 billion in annual sales. In the wake of Measure B, porn production in the Valley has declined by 90 percent according to Los Angeles TimesMany productions companies have since moved to other counties in Southern California and to places like Brazil and Las Vegas, where there are no condom laws. (In fact, three of the largest production companies—which together produce at least 60 percent of all porn—moved to Las Vegas.) There have also been reports of porn going undergound, meaning even less regulation or protections for actors.

This last concern is worrisome and will warrant serious consideration by the state. But it shouldn't be an excuse to let the industry get away with unsafe practices.

Rachel E. Gross is the science web editor at Smithsonian.