LOS ANGELES An appeals court has ruled that courts can’t compel public health officials to require and enforce condom use in porn.

The June 16 ruling by the 2nd District Court of Appeals in Los Angeles upholds dismissal of a case brought against county health officials in 2009 by the AIDS Healthcare Foundation.

In its suit, AHF contended the officials should be compelled to issue a regulatory order requiring adult film performers to wear condoms in sex scenes and get hepatitis B vaccinations.

In upholding a lower court’s dismissal of the case, the appeals court said the county health officer has discretion in his duty to prevent and control disease.

“We cannot compel another branch of government to exercise its discretion in a particular manner,” the court’s three-judge panel wrote in its decision.

The advocacy group’s lawyer Brian Chase says the case will be appealed to the state Supreme Court.

The Los Angeles County Department of Public Health did not immediately provide comment.

The lawsuit was initially filed after the group says it exhausted all other methods to compel the county to protect public health in response to an unidentified porn actress’ HIV positive diagnosis in June 2009.

“The county of Los Angeles has the duty to protect public health, one the highest responsibilities of local government. It simply cannot ignore this duty and blithely sit by while thousands of people, both inside and outside the industry, contract STDs,” said Tom Myers, chief of public affairs and general counsel for AHF.

Since the suit was filed, another adult performer has tested HIV positive after performing in gay and straight porn films.

AHF has publicly called on state and local officials to enforce the openly flouted state workplace safety statute that requires condom use. State workplace safety officials are in an early phase of drafting rules that are more specific to the porn industry, in hopes of seeing improved compliance.

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