How to Protect Airline Passengers With Life-Threatening Allergies; Use Simple Tactics Which Worked For Smoke-Sensitive Passengers
Protecting Airline Passengers
WASHINGTON, D.C. (January 16, 2023) – Millions of airline passengers who have serious life-threatening allergies to foods served or sometimes brought onto airplane flights are regularly being denied the protection to which they are legally entitled, according to the Wall Street Journal and other sources.
But a tactic which protected passengers with allergies and/or special sensitivities to secondhand tobacco smoke might help to solve the problem and perhaps save lives, says public interest law professor John Banzhaf.
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More than 30 million Americans, including 6 million children, have food allergies, primarily to milk, peanuts, and tree nuts. While some conditions may not be very serious, a few passengers are so sensitive that merely touching a surface on which nuts or other foods have rested can trigger a life-threatening condition called anaphylaxis.
Which causes swelling, hives, lowered blood pressure, medical shock, and most importantly construction of the airways - which can cause death in less than 15 minutes, or at very least may require hospitalization.
That's why those who can suffer a severe allergic reaction from certain foods need to be able to preboard flights in order to clean their seats (including arm rests) and tray tables (usually with antibacterial wipes), says the Journal, citing a case where such a passenger found his tray table covered in food crumbs.
But, according to the Journal and other sources, airlines have conflicting policies regarding preboarding for passengers with allergies, and even those policies which could help passengers with life-threatening allergies might not always be followed because those in charge of boarding may not be familiar with them, or overlook them because of time pressures or for other reasons.
The same types of problems occurred when I filed a formal legal petition to protect sensitive airline passengers from secondhand tobacco smoke long before there were reports that it caused lung cancer and heart attacks among even healthy nonsmokers, says Banzhaf. The result was a federal requirement for no-smoking sections aboard commercial airline flights.
Also, during the time when federal regulations required that nonsmokers who arrived on time were entitled to be seated in the no-smoking section, even if it mean shrinking the smoking section to accommodate them, this legal requirement was all too frequently violated.
To protect sensitive passengers, my antismoking organization and I adopted a two-pronged approach.
First, we printed up wallet-sized cards containing the actual text of the federal regulation, along with instructions to show it to flight attendants and others in charge of seating arrangements, and if necessary to ask that the card be brought to the cockpit. This guaranteed that there would be no misunderstanding or misinterpretation of the applicable law.
Second, the card told airline employees that I as a lawyer would file formal complaints of any violations, and provided information for nonsmoking passengers whose rights were violated to send me the information so that I could file legal complaints on their behalf.
This resulted in many hundreds-of-thousands of dollars worth of fines against many major carriers and, for the first time, forced airlines to take steps to insure compliance.
The DOT Ruling
Banzhaf suggests that nonprofit organizations concerned about passengers with allergies, and perhaps even large HMOs and other medical organizations, print a simple wallet-size card containing the formal text of the DOT ruling which can be shown by passengers with serious food allergies to those in charge of preboarding.
A simpler and even less expensive alternative would be to produce a document - which could be downloaded and stored in a cellphone - which provided the text of the federal preboarding ruling articulating the right to which severely allergic passengers are entitled.
Along with warnings about formal legal complaints to the DOT as well as suits in civil courts for life-endangering violations even in no injuries actually result (e.g. for intentional infliction of severe emotional distress if the severely allergic passenger is a young child).
Such a document could also provide links so that passengers whose preboarding rights are being violated could post the situation to appropriate social media sites; a tactic which can often provide a very prompt response by carriers which monitor such sites to head off various embarrassing problems.
However, to prevent passengers increasingly desperate to board early in order to assure space overhead for their carry-on luggage and/or for other reasons, it might be useful to require that passengers do more than verbally claim (i.e., self identify) their legal entitlement for preboarding by presenting a doctor's letter attesting that they meet the DOT's stringent requirements.
As the DOT has explained: "an allergy may or may not rise to the level of a disability, depending on severity. Part 382 Preamble, 73 FR 27459, 27660 ('remember that not all allergies rise to the level of a disability.
The fact that someone may have a stuffy nose or sneeze when exposed to dog or cat dander does not necessarily mean that the individual has a disability.') In contrast, an allergy that 'produces shock or respiratory distress that could require emergency or significant medical treatment' would rise to the level of a disability."
Indeed, D.O.T. considers severe allergies a disability under the act if they impact a passenger’s ability to breathe or “substantially impact another major life activity.”
Banzhaf notes that, just like many passengers would like to be able to preboard, many if not most college students would like to be granted more time to finish writing their exams. However, colleges and universities do not simply allow students to self identify that they have learning disabilities which require them to have increased time to complete their exams.
Instead, they require detailed individualized medical certification which meets stringent criteria for any student to be entitled to this valuable perk. Arguably, something more than mere self identification or certification of an allergy so serious that it "produces shock or respiratory distress" should be required, the law professor suggests.
Banzhaf says he is considering filing another formal legal petition with the DOT to clarity and perhaps increase protections for passengers with serious food allergies, just as he was so successful in doing for passengers who were allergic or especially sensitive to tobacco smoke.
