August 22, 2022. Tycko & Zavareei LLP obtained an important ruling in favor of Illinois consumers who shared their images to virtually “try on” cosmetics on the bareMinerals website and other sites operated by Shiseido Americas Corporation. Judge Colin S. Bruce in the United States District Court for the Central District of Illinois denied the beauty company’s motion to dismiss and motion to strike class allegations at the end of August. The ruling, one of the first in the nation to consider how the Illinois Biometric Information Privacy Act (BIPA) applies to companies who market their products online using virtual try-on technology, will allow the plaintiff a chance to prove his claims and seek to represent other consumers across the State of Illinois who used the technology on Shiseido’s websites.
BIPA requires companies who capture or collect biometric information (such as facial geometry) to obtain informed consent before doing so and create and publish a written policy explaining what they do with consumers’ biometric data and ensuring they destroy this data within certain timelines. Shiseido markets a Virtual Try On (VTO) tool on its websites that allows consumers to view Shiseido’s makeup products overlaid on an image of their face (either real-time using their phone or computer’s camera or with an uploaded photograph). The lawsuit alleges that the cosmetics company operates the VTO technology by capturing and collecting consumers’ facial geometry, but does not obtain their consent to collect that biometric information and does not inform customers what it does with the data
“We are pleased with the court’s ruling and look forward to proving our case on behalf of Mr. Powell and Illinois consumers like him. Consumers have the right to know when companies are using their biometrics and whether they are taking proper steps to protect this sensitive information,” said Glenn Chappell, Associate and TZ’s Appellate Practice Group Chair.
The case is George R. Powell v. Shiseido Americas Corporation, Case No. 21-CV-2295 in the United States District Court for the Central District of Illinois, Urbana Division.