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Sunday, February 05, 2017

Allergies and the Airlines

Thanks to Howard and PrawfsBlawg for inviting me back as a guest for February.  Because I teach and research in the areas of patent law and procedure, most of my posts will focus on those topics.  I wanted to start, however, by discussing an issue that has caught my attention primarily because I am the parent of a child with severe food allergies.

As the New York Times and others have reported, American Airlines (AA) has recently come under attack based on its policies regarding customers with peanut allergies.  Specifically, unlike other airlines (e.g. Alaska Airlines, JetBlue, and British Airways), AA does not “allow passengers to pre-board to wipe down seats and tray tables” in an attempt to reduce the possibility of exposure to nut residue.  Last month, Food Allergy Research and Education (FARE) filed a complaint with the U.S. Department of Transportation (DOT) challenging this policy.  FARE argues that by refusing to allow allergy sufferers to pre-board, AA is in violation of the Air Carrier Access Act of 1986, which prohibits discrimination by air carriers on the basis of a “physical or mental impairment that substantially limits one or more major life activities.”  According to DOT regulations, “major life activities” include breathing.  Thus, FARE argues, allergy sufferers are physically impaired due to their limited ability to breathe.  DOT regulations further provide that airline carriers “must offer preboarding to passengers with a disability who self-identify at the gate as needing additional time or assistance to board, stow accessibility equipment, or be seated.”

This will not be the first time DOT has considered how to handle the situation of peanut allergy sufferers and air travel.  In 1998 and 2010, the agency proposed restrictions on airlines serving in-flight peanuts, but those efforts failed due, at least in part, to opposition from the peanut industry.  So, today, individual carriers have wide discretion in deciding how to treat passengers with peanut allergies.  Some airlines have taken steps to protect peanut allergy sufferers—e.g., by not serving peanuts, creating “buffer zones, ” making announcements when someone on board has a severe nut allergy, or allowing allergy sufferers to pre-board to wipe down their seats.  But other carriers have not made such efforts, and currently are not required to do so.  While I realize that a complete ban on peanuts is probably unrealistic, I hope that FARE’s complaint will make air travel safer and more predictable for those who suffer from life-threatening food allergies.

Posted by Megan La Belle on February 5, 2017 at 02:43 PM | Permalink


Concerned_Citizen -- here's one study that suggests it helps reduce the risk of an in-flight reaction: http://www.jaci-inpractice.org/article/S2213-2198(13)00078-0/pdf.

Posted by: Megan La Belle | Feb 7, 2017 12:24:07 PM

I don't really care whether one or 15 people get on ahead of me and wipe down their seats, their neighbor's seats (including mine, I suppose, and assuming it's not damp when I get there) and their tray table and seatbelt/buckle, etc.

What I do wonder is why would anyone believe this would be efficacious in removing or even substantially reducing residues of nut proteins.

Is there any evidence that permitting this is anything more than a feel good; a placebo?

Posted by: concerned_citizen | Feb 7, 2017 11:48:50 AM

Brad -- thanks for your comment. I think you're right that gaming is inevitable. However, it could be minimized by requiring a doctor's note attesting to the passenger's allergy and indicating that wiping down the seat could reduce the possibility of an in-flight reaction.

Anon -- thanks also for your comment. I think pre-boarding is necessary for at least two reasons. First, it's much easier to clean off seats, etc. during pre-boarding when the plane is less crowded and passengers can move around more easily. As I'm sure you know, it's hard enough just to get into your seat during regular boarding, much less try to wipe down the seat, seat belt, tray table, etc. Second, I believe that a passenger with a severe allergy would not only want to wipe down her seat, but the seats immediately adjacent to hers in case, for example, the previous passenger spilled his bag of peanuts all over the seats. That would be difficult, if not impossible, to do during regular boarding.

Posted by: Megan La Belle | Feb 6, 2017 8:31:38 PM

I don't quite understand how pre-boarding helps. I assume the person has to wipe down the seat and tray table because it might have nut residue on it from the prior flight, but why couldn't they do it when they arrive to their seat during normal boarding? If it's because his or her seatmates/neighbors may have already contaminated it, then wouldn't that be a problem once those people arrive during regular boarding, requiring you to wipe them down again? If that remains a risk, but re-wiping them provides an effective solution, then it seems like wiping during pre-boarding isn't necessary or effective after all.

Posted by: Anon | Feb 6, 2017 5:49:46 PM

When discussion rules like this it bears keeping in mind that there's the sympathetic hypos presented and then there's the messy reality of how things play out in the real world. Anyone who has taken a plane to Florida and paid attention noticed several people that pre-boarded in wheelchairs and then just walked out at the other end. They just wanted to get on first -- waiting at the other end was not part of the plan. The abuses of the rules for dogs on airlines are likewise legion.

Pre-boarding is a thing of value, many airlines explicitly charge for it and the others to so implicitly by giving it to their most profitable customers. Gaming is inevitable and should be considered up front.

Posted by: brad | Feb 6, 2017 10:54:43 AM

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