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Finally, he said, Dunkin' and its franchisees are not required to offer nondairy alternatives.

A lawyer for the plaintiffs, Keith Gibson of Keith Gibson Law PC, said a revised complaint could be filed with more details on the conditions and effects lactose intolerance has had on his clients.

"Are you alleging that all symptoms of lactose intolerance are disabling?" the judge asked.

Gibson said yes. He compared lactose-intolerance to Type 1 diabetes. While not everyone with the condition has the same reaction or symptoms when they ingest sugar, it's still a disability that could be covered under the ADA, Gibson said.

He said his clients' litigation is similar to one against the restaurant chain P.F. Chang's. In Phillips v. P.F. Chang's China Bistro Inc., a California federal judge held in 2015 that the plaintiff had stated a claim under the ADA related to a higher-priced gluten-free menu presented to customers with celiac disease.

"I think that ultimately, we will be able to allege sufficient detail and facts to support lactose intolerance as a disability covered by the by the ADA," Gibson told the judge.

The suit, filed in December, claims Dunkin' charged the customers 50 cents to $2 extra for substituting dairy with soy, oat, coconut, or almond options in their drinks.

The 10 named plaintiffs say they are lactose intolerant or have a milk allergy and suffer adverse health effects if they have milk or milk-containing products, including stomach pain, digestive tract inflammation, bloating, bowel irregularities, and vomiting.

They say Dunkin' will modify its regular beverage offerings to remove sugar or use sugar-free sweeteners at no additional charge for those persons with diabetes or who aim to control weight.

"Defendant discriminates against plaintiffs and the putative class members by levying a surcharge for its non-dairy alternatives ... added to its coffee-based drinks and other beverages," the complaint says.

The customers are represented by Trenton R. Kashima of Milberg Coleman Bryson Phillips Grossman PLLC and Keith L. Gibson and Bogdan Enica of Keith Gibson Law PC.

Dunkin' is represented by David B. Carpenter, Brett E. Coburn, and Meghan M. McBerry of Alston & Bird LLP.

The case is Garland et al. v. Dunkin Donuts LLC, case number 3:23-cv-06621-SI, in the U.S. District Court for the Northern District of California.