Eyewear Virtual Try-On Tool Not Regulated By Illinois' Biometric Information Privacy Act

On September 8, 2022, an Illinois federal judge dismissed with prejudice a Biometric Information Privacy Act (Privacy Act or BIPA) class action against an online eyewear retailer over its virtual try-on (VTO) tool, which consumers used to try-on eyewear. It held that the Privacy Act did not regulate the virtual try-on tool because it falls under the Privacy Act's "health care exemption."

Frames for America, Inc. sells both prescription and non-prescription eyewear and sunglasses through its website FramesDirect.com. The website offered consumers a feature that allowed them to virtually try on glasses or sunglasses. According to the complaint, the VTO tool used software to scan a consumer's facial geometry from a photograph uploaded by the consumer and then to digitally place the eyewear over the consumer's face.