Virtual ‘Try On' Features: Do They Create Biometric Privacy Concerns For Retailers?

Retailers' virtual "try-on" features have come under attack lately by lawsuits claiming violations of consumers' biometric privacy rights. The increasing risk of litigation highlights a new area of compliance concern for retailers as online shopping has become the new normal for many consumers.

Typical lawsuits in this space concern the popular online virtual "try on" features offered by a variety of retailers, including eyewear, fashion, and cosmetics brands, which allow consumers—from the comfort of their homes—to view what products will look like on their faces or bodies before making a purchase. Consumers either upload an existing photograph or use their phone or computer camera to see, for example, what a particular pair of glasses might look like on their faces, or what a certain color of lipstick might look like once applied. Retailers are increasingly using these tools, which became particularly popular during the pandemic, as a substitute for the