For over two years now, online retailers—such as cosmetics and eyewear brands—that utilize virtual try-on (“VTO”) tools have faced a barrage of class action litigation alleging that their technology violates the Illinois Biometric Information Privacy Act (“BIPA”). During this period, a defense has emerged for the targets of VTO suits and online eyewear retailers in particular—BIPA’s health care exemption. Relying on this exemption, a major apparel brand recently defeated a class action suit alleging it improperly collected website visitors’ face geometry scans through its VTO tool in violation of Illinois’s biometric privacy law. The opinion re-affirms the strength of this defense to facilitate complete dismissals of BIPA class actions involving eyewear brands involved in the defense of VTO biometric privacy class claims.

Facts

The defendant, an apparel brand that sells eyewear (as well as other products), provides shoppers a VTO tool on its site, which allows users to virtually “try on” eyewear frames to see how they look on them prior to making a purchase by virtually placing the frames on the user’s face.

Delma Warmack-Stillwell filed suit against an apparel brand, alleging that the retailer’s VTO tool ran afoul of BIPA Sections 15(a), 15(b), and 15(c)—relating to the law’s privacy policy, data retention, and informed consent requirements, as well as its prohibition on selling or otherwise profiting from individuals’ biometric data. In response, the apparel brand moved to dismiss the complaint under Federal Civil Rule 16(b)(6), arguing that the plaintiff could not establish a cognizable BIPA claim against it because the law’s general health care exemption—which provides that “information captured from a patient in a health care setting” is excluded from the definition of “biometric identifiers” and “biometric information”—served as a complete defense to liability against the apparel brand.

BIPA’s Health Care Exemption Dooms Plaintiff’s Eyewear VTO Class Action

The court agreed, finding the plaintiff’s BIPA claims to be barred as a matter of law under the general health care exemption. In reaching this conclusion, the court noted that whether the exemption applied to the apparel brand depended on whether the plaintiff, in using the VTO tool, was a “patient” in a “health care setting.” Because BIPA did not define these terms, the court ascertained their meaning by looking to their respective dictionary definitions.

The court first found that the plaintiff met the definition of a “patient,” which is defined as “an individual awaiting or under medical care or treatment” or “the recipient of any various personal services.” The court reasoned that under an objective application of the exemption’s text, sunglasses—even if non-prescription—protect one’s eyes from the sun and are Class I medical devices under the Food and Drug Administration’s regulations. Thus, by using the VTO tool to try on sunglasses, the plaintiff was “an individual awaiting . . . medical care,” and therefore a “patient,” because the tool facilitated the provision of a medical device that protected vision.

The court also concluded that use of the VTO tool constituted “health care,” defined as “efforts made to maintain or restore physical, mental, or emotional well-being especially by trained and licensed professionals,” as the VTO tool facilitated the purchase of sunglasses to wear on one’s face—which the court noted is exactly the use that fulfills that product’s medical purpose.

The court further highlighted the fact that its conclusion comported with the one reached by other courts that have considered whether BIPA’s general health care exemption applies in the context of eyewear VTO tools, namely, Svoboda v. Frames For Am., Inc., No. 21 CV 5509, 2022 WL 4109719 (N.D. Ill. Sept. 8, 2022), and Vo v. VSP Retail Dev. Holding, Inc., No. 19 CV 7189, 2020 WL 1445605 (N.D. Ill. Mar. 25, 2020). In so doing, the court noted that both the Svoboda and Vo courts recognized that the VTO tools at issue in those disputes fell within the exemption, despite the fact they were also used for virtually trying on non-prescription sunglasses.

Taken together, because—in using the VTO tool—the plaintiff was a patient receiving a health care service in a health care setting, BIPA’s general health care exemption was applicable to the claims asserted against the apparel brand, precluding the company from being held liable under Illinois’s biometric privacy statute for its alleged collection and use of website visitors’ biometric identifiers or biometric information. As such, the court granted the apparel brand’s motion to dismiss under Rule 12(b)(6) for failure to state a claim.

Analysis & Takeaways

As indicated above, Warmack-Stillwell is not the first eyewear VTO biometric privacy class action to be dismissed outright under the law’s general health care exemption. Of note, both the Svoboda and Vo courts rejected the argument that the health care exemption was inapplicable because the plaintiffs were never patients of the eyewear retailers and never sought or received any health care or treatment from those entities. Taken together, Warmack-Stillwell, Svoboda, and Vo demonstrate BIPA’s health care exemption as a defense, which can serve as a valuable tool for eyewear brands in the defense of BIPA claims to defeat class action lawsuits alleging purported violations of Illinois’s stringent biometric privacy statute.

At the same time, Warmack-Stillwell demonstrates the broad scope of the health care exemption to procure outright dismissals in a wide range of BIPA disputes—even those outside the VTO context—through the assertion of this defense, where the facts underlying the litigation involve prescription or non-prescription medical devices (such as eyewear).