Peanut-free on board: Is there any legal duty?
Peanuts are a common in-flight snack, while the number of persons with peanut allergy is on the rise. How can airlines accommodate persons allergic to peanuts in an enclosed space with a recirculated air ventilation system?
In mid-July 2017, a three-year-old child suffered an allergic reaction to peanuts on board a flight, despite being provided a peanut-free meal, because peanuts were still served as a snack to other passengers. Once the packets were opened, the peanut dust triggered the allergy. While the child was safe, the parents requested the airline to provide a peanut-free flight. This leads to my question as to the grounds upon which an airline owes a duty to passengers with a peanut allergy.
The International Civil Aviation Organization (ICAO) does not specifically address a peanut ban; however it does focus on crew training and first aid. The International Air Transport Association follows ICAO’s guidelines and urges allergen-sensitive passengers “to do everything in their power” to prevent a severe allergic reaction.
An exceptional move in this regard can be observed in Canada. The Canadian Transportation Agency (CA Agency) obliges air carriers to accommodate persons with peanut allergy only where the passenger is disabled (see e.g. CA Agency Decision No. 4-AT-A-2010). The CA Agency, applying the International Classification of Functioning, Disability and Health, World Health Organization (ICF), has determined that allergy is an impairment. The burden falls on the person with peanut allergy to prove that there are activity limitations and/or participation restrictions in the context of air transport due to the allergy. The CA Agency acknowledged the impossibility of an allergen-free environment since air carriers cannot force all passengers not to bring products containing peanuts or other allergens on board. To balance both sides, the CA Agency ordered air carriers to provide a peanut-free buffer zone when a passenger has provided advance notice.
Conversely, no regulation exists in the European Union and the United States to prescribe how air carriers should accommodate passengers who are allergic to peanuts. The US Department of Transportation (DOT) once proposed protecting passengers with disability due to peanut allergy, but Congress called for further study. Thereafter, the DOT only required air carriers to include allergies in the report on disability-related complaints. Moreover, if air carriers agree to accommodate persons with peanut allergy by not serving peanuts on board, failure to do so leads to a violation of Section 382.41 on information for qualified individuals with a disability.
Owing to no uniform rule on accommodating persons with peanut allergy on board, an air carrier’s legal duty towards peanut-allergic passengers varies depending on the jurisdiction. It is likely that allergy is considered to be a disability and, accordingly, the duty means a duty towards persons with disability. Disability rights are deemed a stronger ground for air carriers to accommodate the needs of passengers. Moreover, the US Supreme Court decided in Olympic Airways v. Husain that an air carrier which had repeatedly refused to move a passenger with a smoke allergy to an available seat in a smoke-free section, was liable for the death of the passenger. By way of comparison, air carriers may be liable if passengers who are allergic to peanuts sustain injury due to the air carrier’s failure to accommodate them in a nut-free section of the aircraft.