For those with allergies, air travel can be a real hazard
by Gordon Campbell
We all know Americans have a reputation for being litigious, which makes the outcome of this particular story even more surprising. Reportedly, a woman with a life threatening peanut allergy boarded a United Airlines flight in May 2011 from Florida to Chicago. Because of her serious allergy, Alisa Gleason had asked United employees beforehand to make a flight announcement requesting her fellow passengers to please refrain from eating peanuts during the flight, and United had agreed to do so.
An hour into the flight though, Gleason started to have an allergic reaction. According to this account in the US Allergic Law Project. Gleason had observed someone seated four rows behind her, eating peanuts. Her medication and inhaler had no effect. Flight attendants and a nurse travelling on the same flight then advised the captain that Gleason may not survive until the plane got to Chicago, so an emergency landing was made in Missouri. By that time, Gleason was only intermittently conscious. She spent two days in intensive care, but survived. She sued the airline.
OK, this is where it starts to get surprising. You might well think she had an open and shut case. She had advised the airline of her condition. According to her legal brief, United had been negligent in that the flight crew had failed to make the announcement that United had expressly agreed to make. She had almost died, and suffered a considerable level of emotional distress. This is what happened instead:
United filed a motion for summary judgment, which is a legal brief arguing that the plaintiff would lose even if all the facts the plaintiff alleged were true. In other words, they wanted the suit decided then and there on legal grounds. A federal judge recently agreed with United and United is now asking the court to order Gleason to pay them $9,888.33 to cover their costs for the litigation.
What saved United’s bacon? De-regulation. There is piece of US federal legislation called the Airline De-Regulation Act of 1978 that virtually absolves an American airline of liability for almost anything that happens while you are in their care. The relevant clause says that a state cannot “enact or enforce a law…related to price, route, or service of an air carrier.” The key word here is “ service” which covers just about everything the carrier may do for you, or to you. Supposedly, the original de-regulatory aim of the law had been to lower the entry costs for budding new entrants to the airline industry and thus make it more competitive – but the outcome is what befell Ms Gleason, whereby she ended up being sued by the airline for nearly $10,000 after their apparent negligence helped to almost kill her.
Keep that in mind when next flying US domestic airlines. Yet be consoled. If they do kill you by whatever means, know that your (entirely uncompensated) death will have helped to extend and preserve the free market. So what is the situation in New Zealand? Perhaps mindful of the legal risk of carrying customers with allergies that are dangerous to themselves, Air New Zealand has put a cautionary message on its website.
Basically, if you or the children who may be accompanying you have a serious allergy – and globally, the incidence of food allergies seems to be markedly on the increase – you had better hope your travel agent knows about this statement. To repeat: don’t tell your travel agent that you have an allergy, tell the airline. They are more likely to direct you to their policy statement. In practical terms that policy statement says: bring your own food on board, because we can’t, and we won’t, guarantee your food safety.
Here’s the gist of it:
Since Air New Zealand’s inflight meals are prepared at over 20 kitchens around the world and each kitchen sources food and ingredients from many different suppliers, it is not feasible to test or control every ingredient and utensil used in preparing every meal to the level of being able to guarantee there will be no traces of an allergen substance present.
We also realise that some customers have allergies so severe they can react to the presence of tiny quantities of food in the air, the most common example being peanuts. Experience has shown it is not feasible to exclude these minute traces from the aircraft environment, since we cannot control what is brought onboard by other passengers or left behind by passengers from previous sectors. We therefore, advise that we are unable to provide allergen-free meals and/or an allergen-free environment on any of our services. We do have a selection of special meal options available, however please note that we are not able to cater for individual requests for specific food items to be included or excluded from any of our meals.
OK…so therefore, the only safe option would appear to be : bring your own food. Air New Zealand evidently thinks so:
If you need to be absolutely certain of an allergen-free meal, you’re welcome to bring your own meal on board.
But…uh oh :
However, because of limited aircraft facilities, we are not able to heat meals that you bring with you, nor are we able to refrigerate your meal in case the container should become contaminated with other food in the aircraft refrigerator.
And furthermore, if you try to take your food hamper off the flight at a stopover leg, you could be in breach of the quarantine laws :
Please note on international services, all food must be consumed or left onboard the flight on each sector because of quarantine regulations in overseas countries.
In other words, if you’re on an international flight say from Auckland to Singapore to London, the food you bring on will have to be eaten or jettisoned on the first leg, and good luck with finding allergy free food in the Singapore airport food court.
I know, this issue could be considered a First World Problem, but such nonchalance would be unfair. Commonly consumed foods can kill the adults or children who suffer from a vulnerability whose incidence – as mentioned – seems to be on the increase. The data on the extent of food allergy in New Zealand is scarce, and the lines tend to be blurred between food allergy and food intolerance, A summary of the New Zealand situation can be found on the Allergy New Zealand website:
It includes these observations :
A large population-based epidemiological study of food allergy in 12-month-old infants in Melbourne (Australia) was reported in 2011. The study used food challenges to confirm the diagnosis. It found more than 10% of infants had a food allergy. It is likely rates will be similar in New Zealand. The Melbourne study found the most common allergy was to raw egg (8.9%), peanut (3%) and sesame (0.8%). Oral challenges weren’t conducted for cows’ milk allergy but 5.6% were found to be sensitised. Sensitisation rates to shellfish were low and oral challenges not carried out; wheat, soy and tree-nut allergies were not included in the study.
Food allergy can cause anaphylaxis, a life-threatening allergic reaction. Anaphylaxis is a medical emergency and patients must be given an intra-muscular injection of adrenaline, an ambulance called and the patient observed in hospital for at least 4 hours in case of secondary (biphasic) reaction. Further treatment may be required. A review of hospital data on admissions between 1993 and 2005 in Australia found a 5-fold increase in hospitalisations for anaphylaxis to food in children under age 5 years. This is further evidence of the increase in prevalence of food allergy
One surprising feature of the allergy literature is that some research is suggesting a possible linkage between rising allergy rates and the incidence of caesarean births.
However, that proposition remains somewhat speculative. It relies on the immunising role that may be played by secretions during the transit of the birth canal, in the course of vaginal delivery.
But that’s another story. The wider point here being: travel poses a special danger to the seriously allergic, in that it herds the people who are most vulnerable into close and sustained proximity with potential sources of risk.
One can sympathise with Air New Zealand, which declined to be interviewed for this story. As it says on the company website, it may well be operationally impossible to guarantee that the contents of the food it offers are exempt from the minute traces than can still do serious harm. Nor can the airline guarantee that ‘cross contamination’ will not occur in storage, or while the food is in the fridge or being heated.
No one likes to starve their passengers, even temporarily. Yet this option is clearly preferable to harming them seriously, or killing them. Not to mention the risk of exposing the airline to litigation from say, a litigious American in a context where de-regulation here hasn’t given airlines quite the carte blanche that they enjoy in the US.
Footnote : While it declined my request for an interview, Air New Zealand did offer to answer written questions on this subject. I chose to concentrate on trying to clarify what laws, if any, may protect the likes of an Alisa Gleason if they happened to be travelling on an Air New Zealand flight, domestically or internationally. These questions were:
1. In its domestic or international flights, does Air New Zealand recognise any legal obligation – under the Consumer Guarantees Act or any other domestic or international law relating to the airline industry – to provide food of a safe standard to any passenger who advises them (within reasonable time) that they or their accompanying children have a serious food allergy?
Air New Zealand’s reply barely touched base with the question, consisting instead of a precis of the website statement quoted above about the impossibility of providing an allergen-free environment. . The only reference to its legal obligation came in this line : “…..As you’ll appreciate international travel across different ports is subject to a number of different country jurisdictions and international law, not just New Zealand legislation….”
2. Given that airline food is a component of the price of an airline ticket, does Air New Zealand offer a discount to those passengers with a serious food allergy who do bring their own food on board – and if not, why not?
Apparently not. Air New Zealand’s initial written reply bore no relationship whatsoever to this question. When asked again to address it, the company replied : “Air New Zealand offers customers travelling on trans-Tasman and Pacific Island services the choice to purchase an inflight meal as part of their fare. On all other international services our fares are all inclusive.”