If you’re lactose intolerant or otherwise sensitive to dairy products, you’re likely used to asking ice cream shop attendees, restaurant servers and coffee shop baristas if they offer almond milk, oat milk or other nondairy alternatives.

You’re also likely used to paying extra when the answer is yes, since substituting nondairy milk typically triggers a surcharge.

With a recently filed lawsuit, a group of Dunkin’ customers is challenging this practice. They argue that the coffee shop’s fees for milk swaps represent unlawful discrimination, since lactose intolerance, at least in some cases, is recognized as a legally protected disability.

“Being able to drink milk is a choice for some people, but it’s not for others,” said attorney Bogdan Enica, who is representing the 10 people who brought the lawsuit against Dunkin’, to NBC News.

The group is seeking to turn the case into a class-action lawsuit that could be joined by Dunkin’ customers across the country.

“The lawsuit seeks damages amounting to no less than $5,000,000, which is the minimum amount that lawsuits need to seek to fall under the jurisdiction of a district court under the Class Action Fairness Act,” NBC News reported.

Dunkin’ did not respond to NBC News’ request for comment, and it has not yet filed a full response in court.

From the ‘Got Milk?’ generation to the ‘Not Milk’ generation
New FDA guidance says plant-based beverages are ‘milk,’ too

Nondairy milk at Dunkin’

Dunkin’, like many coffee shop chains, offers a range of milks and milk alternatives. And also like many other restaurants, it charges extra for the alternatives.

“Depending on the date and location (of their purchase), the customers (involved in the new lawsuit) were charged anywhere from 50 cents to $2.15 extra for the substitution,” per ABC News.

Restaurants and cafes typically justify price differences like Dunkin’s by pointing to the prices they pay on the back end.

A recent investigation from Bon Appétit magazine found that the cheapest almond milk available at the grocery store cost 2 cents more per ounce than the cheapest whole milk. If you multiply those per ounce costs with the amount of milk coffee shops use, the small price difference becomes a big price difference, the article said.

If the discrimination lawsuit against Dunkin’ moves forward, one key question in front of the court will be whether requiring the restaurant to cover the price difference between dairy milk and nondairy milk is “reasonable.”

“The Americans with Disabilities Act (ADA) requires public entities to make ‘reasonable modifications’ to their rules, policies or practices when they are necessary for individuals with disabilities to afford their goods, services, facilities, privileges or advantages — unless the entity can demonstrate that such modifications would fundamentally alter the nature of those goods, services, etc,” NBC News reported.

Enica, the attorney representing the 10 former Dunkin’ customers who are alleging discrimination, is also involved in a very similar lawsuit against Starbucks, according to NBC News. Starbucks has filed a motion to dismiss that case.

Popular nondairy milks

As nondairy milks have become more popular among not just people with dairy issues but also environmentally conscious customers and others, some restaurants have responded by voluntarily doing away with milk-related surcharges, Bon Appétit reported.

“Panera Bread and Pret a Manger both ditched vegan milk surcharges in early 2020. That same year San Francisco chain Philz stopped selling 2% dairy milk altogether as oat milk sales surged. And in May (2022), Blue Bottle removed upcharges on plant-based options and made oat the default across stores as part of a commitment to go carbon-neutral by 2024,” the article said.

But this type of change doesn’t always save customers money, Bon Appétit noted. Sometimes, restaurants do away with surcharges for alternative milks by making all drinks more expensive.

“Depending on what you’re ordering, this flat pricing structure isn’t necessarily saving you money on your drink,” the article said.