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Is Dunkin' Donuts’ Upcharge on Nondairy Milk Discrimination Under the ADA?

By Catherine Hodder, Esq. | Reviewed by Joseph Fawbush, Esq. | Last updated on

Do you enjoy oat, soy, or almond milk in your beverage but not the extra charge for it? That may change under class action lawsuits against companies imposing an upcharge for non-dairy milk alternatives. The lawsuits claim that the surcharge is a discriminatory practice against those who are lactose intolerant or have milk allergies.

Food allergies and intolerances are a recognized disability under the Americans With Disabilities Act (ADA). The Act passed in 1990 did not have provisions for people with allergens or intolerance to food but were incorporated by amendments in 2008.

Dunkin’ Donuts is the most recent defendant in trending lawsuits. Last month, Dunkin’ customers filed a $5 million class action suit in the Northern District of California. According to ABC News, the lawsuit states Dunkin' charged customers from 50 cents to $2.15 for a regular milk substitution.

What Does the ADA Say?

Under the ADA, public accommodations, such as businesses selling goods and services to the public, must make reasonable modifications not to exclude, segregate, or treat people with disabilities unfairly. The Act directs those public entities to provide modifications that can be easily accomplished without a significant burden or expense to the business.

For example, businesses open to the public should be wheelchair accessible. Businesses existing before 1993 are grandfathered in, meaning they do not have to comply with the more stringent rules. Therefore, if a business existing before 1993 is in a historic building and it would be costly to build ramp access, the business does not have to make it wheelchair accessible. However, if the business renovates, it must follow the ADA rules to make room for wheelchairs.

What Are Reasonable Modifications?

There is a lot of gray area regarding what makes an accommodation reasonable, but it should not interfere with the business or be unduly burdensome. For example, a reasonable modification for a bakery business would be to provide gluten-free options. However, it is unreasonable to require a bakery to retool its kitchen so they have dedicated equipment and ovens for gluten-free items.

And businesses can defend their reasonable modifications. Starbucks successfully challenged three lawsuits based on accessible counter space. The 9th Circuit Court of Appeals ruled that while the coffee chain had to provide counter space that was 36 inches long and 36 inches from the floor, there was no requirement to keep the 36-inch counter length clear, meaning the business could use the space for merchandise and other items.

What Could Dunkin’s Defense Be?

The company might argue that they are not discriminating against allergic or intolerant customers. They provide non-dairy alternatives for those customers, and the additional charges reflect their costs. Cow’s milk is cheaper due to the government subsidies for the dairy industry. They may claim that these substitutions are more costly and, therefore, an unreasonable modification to bear.

Furthermore, they do not single out a class protected by the ADA. Vegans do not consume animal products and choose plant-based alternatives like oat milk. The company does not ask if the non-dairy milk preference is due to a medical condition or a lifestyle practice. They implement the surcharge for any customer ordering a non-dairy alternative.

What Could the Plaintiffs Argue?

However, the plaintiffs claim that the coffee chain makes regular substitutions without an upcharge. For example, they accommodate their customer’s other dietary needs, such as providing caffeine-free beverages to those with hypertension or sugar-free drinks to those with diabetes.

They may also point out that the company is international, and other than the U.S., they do not charge extra for non-dairy alternatives. Considering this, the plaintiffs will argue the non-dairy surcharge violates the ADA as well as some state anti-discrimination laws.

Sip N’ See

Will the class action lawsuit succeed against Dunkin’ Donuts? It's too early to say. Coffee drinkers filed a similar lawsuit in 2022 against Starbucks in the U.S. District Court Middle District of Florida for the same claim. As it stands, Starbucks filed a motion to dismiss and is pending approval by the court.

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