Porn Panic 2012: Oh, Great: Just What The Doctor Ordered..Disunity!! The Great Testing War

Never let it be said that an industry as dysfunctional as the adult film industry can't find new and different ways to bite their own hands.

It's bad enough dealing with Michael Weinstein and CalOSHA and the condom mandate, but now there is an emerging dustup over modern testing standards that threatens to blow the entire industry standard to smittereens.

Basically, the issue is a war of words between two testing agencies: Talent Testing Services TTS), and Cutting Edge Testing (CET). The former has been one of the primary testing services for porn performers since the demise of the Adult Industry Medical (AIM) Foundation; the latter was formed directly out of the ruins of AIM itself. The latter also happens to have one big advantage: it's backed by the Free Speech Coalition, the main lobbying group for the adult industry, via its main protocol agency, the Adult Production Health and Safety Services (APHSS), which essentially rebooted AIM's old protocols and database and upgraded it for the present.

You will recall last year in the latest HIV porn scare where a performer was found to have been tested positive for HIV, only to find that the series of tests turned out to be a false positive due to contamination of the original sample. You will also recall that the performer had used TTS as his backup test after he was first found to be "reactive", then he switched over to another clinic that was backed by APHSS, which verified the false positive. That raised some barbs from some, since TTS had opted not to be a part of APHSS, citing both costs and "performer choice". Also, FSC had noted that their protocols required any testing agency to have an in-house doctor on staff to verify the accuracy of their testing, which TTS didn't have. It was soon after that episode that Cutting Edge Testing was born, offering updated tests with results as quickly as 24 hours after the needle draws blood, and the latest and greatest testing procedures.

And about those tests?? Well, here is a description of them from the FSC website:

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.

The controversy here is that the Abbot test is sanctioned only for viral loads, but not for diagnosis of HIV (in that, it's similar to the old Western Blot test that was part of the old AIM regime of testing), while Aptima is more related to the old PCR-DNA tests. CET, being an APHSS-sanctioned facility, uses both tests; TTS only uses the Aptima test for their standard.

Nevertheless, for those who prefer TTS either because they personally prefer their facilities or they don't trust CET for its "monopoly" and its backing by the FSC/APHSS, it has become a burning issue with them..especially concerning what they perceive as a power play by FSC to make CET into the one and true gold standard of testing, and freeze out all others.

One particularly not-so-happy performer is Shy Love, who just so happens to be the owner and manager of the Adult Talent Managers - Los Angeles (ATMLA) talent agency, which manages the careers of well over a hundred active performers. She has been one of the more active antagonists against what she sees as CET's "monopoly", as well as what she percieves as the FSC/APHSS' drive to control and standardize performer testing, what she sees as nothing more than a shakedown by the FSC to raise money for their organization.

She is reinforced by other critics of the FSC, including director Nica Noelle and performer January Seraph, who originally questioned the security of the APHSS database when it was formulated last year, as well as former producer, now porn critic, Mike South, whom has been a long-time opponent of the FSC and their stewardship of the testing process.

Mark Kernes has a nice breakdown of the entire donnybrook over at AVN.com; here's how he summarized the debate between Love (backing TTS) and FSC/APHSS:

"Talent Testing Service's requirements were requested by [Free Speech executive director] Diane [Duke]," Love stated. "All requirements including doctors—they have a doctor on file. They said it's done. Diane had also requested that if someone came out positive, that there would be counseling done. TTS had agreed that if someone came out positive, with their new HIPAA paperwork that they had, they had the right to have that person converted over to the APHSS system, where they would provide the counseling. They said they had no problem; that was done. The last resource [sic] was, their APHSS system, to enter the data of positives/negatives into the system so APHSS could have it, TTS told them that they were breaking HIPAA laws and against the law because that actually puts the man in charge, so if there's an error, they're liable, but that there is a program that a programmer can put into the back of the system, which at the time Manwin has said that they are willing to pay for the programming and everything else so that that information can be put into the back of the database, and that requirement was met. So all three requirements that Diane had requested..."

However, when AVN's Roy Salter brought up the objection that there was no doctor at the TTS facility when the performer's blood was drawn, Love responded, "No, the doctor is available. The doctor's the one that writes the prescriptions. Diane's issue was, she wanted the doctors to be the ones to contact the patient if they came out HIV-positive, and by law, the doctor does not have to do that. They can actually have a licensed HIV specialist who is a counselor contact the patient directly to notify them of the circumstances, and if APHSS was going to be doing the counseling, at that point tell them to come in to retest, go to APHSS for counseling, which we fixed all that in two seconds."

Duke made the point, though, that in order to fulfill APHSS's protocols, testing would have to be ordered by a California-licensed physician, which TTS does not currently have. 

Moreover, TTS has previously stated that it would immediately report any positive HIV performer to the Los Angeles County Department of Public Health even before any confirmatory test had been done, which would likely result in the shutdown of the industry for as long as a month before even a false positive could be sorted out.

 Or, more likely, in the wake of the condom mandate law, a total seizure and takeover of the industry testing protocols by AHF and an imposition of the condom mandate..which would be far, far worse.

At any rate, the debate seemed to be reaching a stalemate.....that is, until The Gorrilla arrived and put his feet down.

That would be "The Gorilla" as in Manwin, the holding company that has essentially taken over porn production overnight via its holdings of sites like Brazzers, MoFos, Reality Kings, the Playboy collective, Digital Playground, and other sites/production companies. It was Manwin companies who got nearly singed in the last porn panic, since it was accused that Brazzers had allowed the "positive" tested performer to continue to shoot videos while his tests remained in limbo...a charge that was publically leveled by none other than Michael Weinstein of AHF during his attempt to milk it for the condom mandate campaign. And, it was APHSS who rescued Manwin out of the firepit by offering alternative testing that ultimately cleared both the performer and Manwin/Brazzers of any wrongdoing.

Naturally, such good deeds do not go unrewarded. And, when you are the King, you can really, really, really reward. Once again, AVN.com recites the tale:

Manwin Sets New Production Standards

LUXEMBOURG—Manwin has decided to set new best practices regulations for all performers and third party producers hired to create content for its websites.

In its proposal, Manwin supports the system put in place by the APHSS, while also moving beyond the standard industry practice of 30-day interval testing.

The APHSS has set forward a best practices guideline and system that allows performers, producers, and agents to create a controlled work environment.

It includes consistent standards and guidelines for testing and treatment of adult performers, a secure database that ensures performer privacy and protects producer liability, protocol for performer support in the event of a positive HIV test result - including testing of 1st and 2nd generation partners—as well as health and safety resources provided for producers and performers.

In other words..APHSS/FSC is Manwin's choice. Sorry, TTS, but...Scoreboard.

But that wasn't the real game changer in that announcement.  THIS was:

Following months of research, and meetings with various doctors and medical experts from the most respected universities and health institutions in North America, Manwin has decided to implement additional rules for anyone involved in producing content for its sites.

The company will require FDA-approved tests from the clinics listed on the APHSS.org website, specifically the HIV-1 Aptima RNA Qualitive Assay. In addition, the company will require 15-day interval testing for performers.

As of July 1, 2012, adult entertainers performing in scenes commissioned for websites belonging to Manwin will have to provide health tests that are no older than 15 days. Manwin will pay for all additional tests needed under these new rules, in case a performer works for any of the company's brands multiple times in a 30-day period.

Manwin expects producers, performers and agents to be in full compliance with these new regulations, and looks forward to working with the FSC in setting the highest possible standards for the industry.

To summarize, Manwin essentially revolutionized the art of performer testing, by narrowing the window of testing from 30 days to 15, and even backed it up with the option of footing the dime for any performer having to work for any of their sites in multiple scenes.

Oh, but that's not all, either, Clones. Some talk the walk, but it takes real money to back it up. Is this real enough for you??

Manwin Donates Gen Probe Aptima Machine to Cutting Edge

 LUXEMBOURG—Following its decision to enforce stricter health rules and guidelines for its producers and performers, Manwin has purchased the Gen Probe Aptima machine for Cutting Edge Testing.

This piece of equipment performs the Aptima RNA Qualitive Assay, the FDA approved test that Manwin requires as part of the new health standards and procedures from producers, performers and agents.

While researching its new guidelines, Manwin collaborated with various North American health experts and organizations. During this time period, Dr. Peter Miao became a great source of information and support. The renowned infectious disease expert, who was part of the original team of physicians that encountered HIV infections in 1981, oversees the Cutting Edge Testing center.

“Aptima testing by Gen Probe has been available for many years, and is approved by the FDA for the diagnosis of acute HIV infection," Dr. Miao said. "At Cutting Edge Testing, we are now transitioning to the Aptima test for screening of HIV [infections] very shortly."

Manwin is pleased to support Dr. Miao and Cutting Edge Testing.

“This demonstrates Manwin’s concern for the health and safety of all the performers and the industry as a whole,” says Dr. Miao. “By their generous gift, we now can move ahead and perform the Aptima test in the very near future.”

Manwin hopes that the donation will help Dr. Miao and his team continue their work in providing optimal health services to adult entertainment professionals, as well as the public at large.

Yeah. That pretty much settles the case of who Manwin trusts, doesn't it?

The basic reactions from the porn community to this can basically be reduced to two polar opposites: "Whoa!!! Manwin's bringing the porn industry together and finally fighting for performers!!!  KEWL!!!" and "Yeah, right...all Manwin's doing is taking everything over so that there will be nothing left for the rest of us!!!  BOOOOOOO!!!!" I guess that only time will tell who turns out to be right.

And as for Talent Testing Services...well, there is now a movement afoot to get them integrated into the APHSS orbit, so that they can get with the Manwin program, and possibly get themselves some of that green sunshine. (Remember, they already perform the Aptima test long before CET did.) Maybe that can defuse some of the flame throwing now going on.

And then again, there will be folk like Mike South who will dismiss the entire thing as a sideshow circus that detracts from what he considers to be the fundamental flaw with the entire system: the dependency on the databases and the possibility of another breach like what happened with AIM via the original Porn Wikileaks and Desi Foxx, the refusal to add testing for other STI's like HPV, herpes, and syphillis, and ultimately, the refusal to adjust to the new enforcement regime from AHF/LA County/CalOSHA that still may override their best efforts to avoid the condom mandate. Once again, time will either vindicate or crucify his analysis.

And of course, we'll follow everything as we always do here at BPPA. Because we can.

More analysis from Dr. Chauntelle at PVV here; and some from Lydia Lee (channelling Julie Meadows once again, happy to announce) here (also check her podcast here, too).


Update: Uh-oh....seems like Manwin might have spoken just a bit too soon. From the latest post by Sean Tompkins over at The Real Porn Wikileaks:

Manwin is forcing people to test at a certain place as a condition of them getting hired. Manwin insists that all talent pay for the test themselves unless booked more then twice in same 30 day period.. This is a clear violation of LC Section 222.5

No person shall withhold or deduct from the compensation ofany employee, or require any prospective employee or applicant foremployment to pay, any fee for, or cost of, any pre-employmentmedical or physical examination taken as a condition of employment,nor shall any person withhold or deduct from the compensation of anyemployee, or require any employee to pay any fee for, or costs of,medical or physical examinations required by any law or regulation offederal, state or local governments or agencies thereof.

Now I’m not a lawyer and I’ve never played one on tv so I could be wrong.

Now, this would get into the debate over whether a porn performer really is an employee or an "independent contractor"; not to mention the fact that California law expressively forbids using HIV status as a condition for denying employment.

There's also been a genuine Twitter debate going on now between Charity Bangs, a performer who is signed with Talent Testing and has raised serious issues about the "monopoly" practices of Cutting Edge Testing and its alliance with FSC/APHSS and now Manwin; Michael Fattorosi (aka "Pornlaw", who has offered some prime legal opinion on the entire episode), and Keiran Lee, Brazzers' main "stud" performer, whom has also raised some astute questions.  

Porn Panic 2012: Mark Kernes Of AVN Sheds New Light On How The LA "Condom Nazis" Now More Resemble "Keystone Kops" In Pushing Condom Mandate Law

Some new info has now been discovered on the now delayed process of the city of Los Angeles to enforce their new condom mandate law, which was supposed to be in full effect by now, but is now in limbo due to...well, I'll just let Mark Kernes from Adult Video News Online tell the story.

City Administrative Officer Asks For More Time on Condom Regs

After all, they've only had about four months to figure out that the new ordinance is completely unworkable

LOS ANGELES—In a letter issued Wednesday, LA City Administrative Officer (CAO) Miguel Santana has asked the City Council to give his "Working Group on the Safer Sex in the Adult Film Industry Ordinance" an extra 90 days—on top of the 120 days they've already had—to figure out how to implement and enforce the mandatory condom ordinance which AIDS Healthcare Foundation (AHF) first tried (at great expense) to put on the June 5 city ballot, and then urged members of the City Council to enact preemptively as city law.

The CAO had been scheduled to deliver its final report to the Council on May 16, though at the Working Group meeting of May 11, it was announced that the report was not ready, and that another meeting was to be scheduled the following week. However, that meeting never took place.

As Santana's letter to Mayor Antonia Villaraigosa and the City Council notes, the Working Group has held three meetings, the first of which was not attended by anyone from the adult industry due to the failure of the City Administrative Officer's office to properly advertise it. The second meeting lasted just over half an hour, one third of which was devoted to comments from the attendees, and third meeting (which likewise was not given proper notification) took just 20 minutes, half of which were devoted to speakers from the audience.

Of course, it's likely that some of the CAO office's time outside the meetings was devoted to figuring out how to make the ordinance work, but however much that was, it apparently wasn't enough. Apparently, one of the main problems to be solved, aside from the "complexities of this issue," is figuring out who will perform the inspections—or as the letter puts it, "the need to further address the implementation matters"—that the ordinance requires of adult movie sets, and it was clear at the second Working Group meeting that neither the Los Angeles Police Department, Fire Department, Personnel Department, the LA County Department of Public Health, CalOSHA nor the permit-issuing agency FilmLA wanted the job, which led AHF's representative at the meeting, Mark Roy McGrath, to suggest that the CAO might want to issue an RFP (Request for Proposal) to the public in order to find some group both willing and capable of performing the task... which critics of the law have long suggested might be AIDS Healthcare itself.

In any case, with no resolution to that problem on the horizon, Santana recommended "That the Council, subject to the approval of the Mayor, authorize a 90 day extension for the Working Group to Report to Council on the City's ability to implement and enforce the Safer Sex in The Adult Film Industry Ordinance."

To read Santana's entire letter, click here.

 The most interesting point that Kernes makes is that not even the LAPD's Vice Department is so keen to enforcing this law...even though it was them whom launched the "raid" on Dan Leal's Immoral Productions the night before the third meeting, promptly citing him for a lack of a proper permit.

Actually, the most interesting point is not that, but the offer of AHF to have the CAO do a RFP to outsource enforcement of the law to another group -- namely, AHF or some sockpuppet group, I suppose. Remember that AHF had already agreed to foot the bill for all legal challenges to the law (and rest assured, there will be a plenty of legal challenges). Would they be so willing to invest more of their own money to allow for enforcement?

Or, would they rely solely on the money gained by requiring anyone with a camcorder and a commercial website to buy a permit before they could even shoot a camshow? (Not just major porn companies, Clones....ANYONE running an adult website out of their house who tapes themselves engaging in real sex would be liable to either buy a permit or face harsh fines or even jail.)

And, keep also in mind that California is pretty damn broke right about now, with budget cuts coming down the line that will more than force cutting at the local level as well.

Bottom line is this: would AHF be willing to put its money where Mike Weinstein's big foot is lodged and risk their other enterprises in order to fund their own personal Condom Police Unit? Or...will Weinstein simply double up his thrift stores with more bareback gay porn to sell to make up the difference, or squeeze more AIDS Walks funds...or even more shakedown lawsuits to get more cash??

Curioser and curiouser, sayeth Alice. And I ain't talking Sunny Lane's Alice, either.  Stay tuned....the fun may just be starting.


UPDATE:  Well, The Free Speech Coalition just tweeted this in response to a tweet I did about AHF's fund raising efforts:

FreeSpeechCoalition ‏@FSCArmy

@Anthony_JK @AIDSHealth AHF's annual budget is $187M - they're good at getting funding; other HIV orgs call them the "Walmart" of HIV orgs

FreeSpeechCoalition ‏@FSCArmy

@Anthony_JK @AIDSHealth for enforcement staffing ;-) Does Weinstein want to be the porn czar?

 Yeah....Michael Weinstein as "Porn Czar". With Monica Foster and Shelley Lubben as his aides. And Gail Dines as Chief Policy Advisor. That's not very scary.