On February 22, 2016, the United Nation’s aviation agency, the International Civil Aviation Organization (“ICAO”), approved an interim ban on cargo shipments of lithium-ion batteries on passenger aircraft. This safety measure comes in response to growing concern about the risks presented by air transport of lithium-based batteries, including recent recommendations for greater restrictions from ICAO’s top technical body.

The International Aviation Transport Association (“IATA”) quickly issued an update on lithium batteries, confirming that beginning on April 1, lithium-ion battery packages (UN 3480) must bear the “Cargo Aircraft Only” label in addition to the other marks and labels outlined in IATA’s Dangerous Goods Regulations (“DGR”). IATA expects to quickly amend the 57th Edition of the DGR to incorporate this change. This safety measure does not apply to lithium-ion batteries packed with or contained in equipment (UN 3481), or to shipments on cargo planes. According to ICAO, the passenger aircraft ban will be in force until a new lithium battery packaging performance standard is developed, which is expected to be included in the 2017-2018 ICAO Technical Instructions for the Safe Transport of Dangerous Goods (“Technical Instructions”).

Several commercial passenger airlines including Delta and United Airlines already voluntarily prohibit transport of lithium-ion batteries as cargo aboard their aircraft. In addition, international requirements and U.S. law currently prohibit transport of lithium-metal batteries as cargo on passenger aircraft. Concern remains, however, about the known and, in particular, inadvertent air transport of lithium-based batteries. On February 9, the U.S. Federal Aviation Administration (“FAA”) issued a safety alert to U.S. and foreign commercial passenger and cargo airlines urging them to assess the fire and explosion risks associated with air shipment of lithium-based batteries. The FAA also announced that it is issuing guidance to its inspectors to help them determine whether airlines have adequately assessed these risks. These safety alerts supplement the FAA’s preexisting voluntary recommendations regarding air transport of lithium-based batteries.

The U.S. National Transportation Safety Board (“NTSB”) has also joined the discussion, issuing a recommendation earlier this month that lithium batteries be physically separated from other flammable materials carried as cargo and to establish maximum loading density requirements designed to restrict the quantities of lithium batteries and flammable hazardous materials on aircraft. The NTSB recommendations follow its investigation of the 2011 crash of Asiana Airlines, which it concluded was caused by a fire from battery cargo.

This new ICAO safety measure likely will address some of these concerns.  It may also temper a recent Congressional fight over amending FAA reauthorization legislation. Earlier this month, the House Transportation and Infrastructure Committee voted 25-33 against authorizing the FAA to promulgate regulations more stringent than international standards.  In response, new legislation was recently proposed in the Senate authorizing the FAA to prohibit bulk shipments of lithium-ion batteries on passenger aircraft. The status of that Senate bill is unclear given this latest ICAO decision. The bill that was approved for full House consideration still includes language calling for a Lithium Ion Battery Air Safety Advisory Committee to foster collaboration on battery safety in air transportation.

The ICAO decision follows  IATA’s issuance of the 57th Edition of the DGR and Addendum in January 2016, which incorporate recent changes to the ICAO Technical Instructions regarding air shipments of lithium batteries. The new passenger aircraft ban is expected to be incorporated into an Addendum 4 to ICAO’s Technical Instructions, which will be reflected in an additional addendum to the DGR. Further international activity regarding lithium battery shipments is anticipated as ICAO works to develop its packaging performance standard.


Mr. Sanders leads Baker & McKenzie’s U.S. environmental litigation practice. He represents both domestic and non-U.S. corporations before federal, state and administrative courts in environmental, class action, mass tort and product liability litigation, government enforcement, permitting and criminal proceedings. He counsels companies with respect to compliance with CERCLA, RCRA, CWA, TSCA, OSHA and state environmental and product regulations. Mr. Sanders advises multi-national and domestic corporations on environmental, health and safety statutory requirements and legal risks with respect to products sold or marketed in the United States, including responding to product liability claims and recalls. He also advises clients on environmental, health & safety risks and liabilities in transactions.


Jessica Wicha is a counsel in the Firm’s North American Environmental Practice Group. Her practice covers the spectrum of environmental legal matters, including regulatory compliance counseling, enforcement defense, and environmental aspects of complex business transactions. She strives to provide practical solutions to her client's environmental legal challenges, including day-to-day compliance issues, remediation matters, emergency spills and releases, and regulatory enforcement. Ms. Wicha also has extensive experience advising on environmental transactional matters across a wide range of industry sectors and global jurisdictions. This work includes scoping and coordinating environmental due diligence, managing environmental consultants, advising clients on environmental liability and risk allocation issues and tools, drafting and negotiating environmental contractual language, and coordinating permit transfers.