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.