Virtual Try Ons Allowed: Analysis of the “VTOT” Technology and the Implications of Warmack on E-commerce￼March 9, 2023
Do you remember the days of having to physically drive to a store, walk inside, find a product, and try it on in a dressing room to decide if you want to buy it?
Those days are gone.
In response to the COVID-19 pandemic, an increasing amount of brands, both luxury and non-luxury, have focused on bringing the “real-life” experience of a dressing room to online shoppers. How have they accomplished this?
Virtual “Try On” Tools (“VTOT”)
Through the development and increased reliance on these virtual try on tools, companies are able to cater to the desires of their customers to better enjoy the online shopping experience in an innovative way.
Specifically, there are three types of virtual try on tools being utilized by companies; in-store virtual fitting rooms, mobile virtual try ons, and lastly desktop virtual try-ons. In store virtual fitting rooms often operate in the form of “smart mirrors,” that use augmented reality and machine learning (ML) to overlay items over the image of the customer. The next type is the mobile virtual try ons which takes the form of separate mobile apps that customers can download and choose different products, like makeup, and see it on themselves via their smartphone camera.
Lastly, this technology can be used in the form of desktop virtual try ons. In this form, companies use plugins for their individual e-commerce websites. These websites allow customers to turn their camera on and view themselves trying on a product over the image being showcased on the webcam. This allows the customers to see if they like the fit, style, or color of the item they are considering.
Overall, this technology allows users to “try on” items such as clothes, accessories, makeup, or jewelry, without ever having to leave their home. Specifically these try on tools operates through augmented reality that when used in connection with the camera, allows users to virtually try on the item they are considering purchasing. While operating the live camera, it takes scans or images of the person’s face. As these scans are being conducted through several different sources of technology, the images are stored on whichever platform server the company has decided to use.
However, as more companies begin utilizing this technology in an effort to drive traction to their site, arguments concerning the legality of this technology are being raised.
One example is showcased in the recently dismissed class action lawsuit, Warmack v. Christian Dior, Inc. In this suit, Delma Warmack sued the fashion company after using its virtual try on feature available on their website to try on different pairs of sunglasses. Specifically, Warmack brought her claim under the Illinois Biometric Information Privacy Act (“BIPA”). The complaint alleges that the Dior’s Virtual Try On Tool (“VTOT”) scans a user’s face and collects biometric data that is “transferred” to the servers of both FittingBox and Dior “where it is stored for an uncertain amount of time.” FittingBox is known to be one of the leading providers of the virtual try on technology.
Further, Warmack alleges that Dior “profits from the process of collecting, storing, and using consumer’s facial geometry scans because it improves customers’ experience in purchasing eyewear from Dior online.” This she argues violates the BIPA specifically by “failing to ‘develop or follow a retention policy as required by section 15(a) of BIPA.” Further, the complaint alleges that the company also failed to observe section 15(c)’s mandate that requires private entities “in possession of biometric data to not ‘sell, lease, trade, or otherwise profit from’ that data.”
On the other hand, Dior argued that the suit should be dismissed as Warmack failed to state a claim upon which relief can be granted given that Dior’s conduct falls within the bounds of BIPA’s statutory “health care exception.” This exception excludes biometric information “captured from a patient in a health care setting” from its definitions of “biometric identifiers” and biometric information. In this case, Dior alleged that use of the VTOT to select a pair of sunglasses falls within this exception as eyewear protects the eyes. However, Warmack is quick to point out that this exception should not apply as she was purchasing non-prescription sunglasses, so therefore, she should not be considered a “patient.”
What was the outcome?
On February 10th, 2023, Judge Elaine Bucklo for the US District Court of Illinois granted Dior’s motion to dismiss under Rule 12(b)(6), agreeing that the healthcare exemption applied in this case.
By using the VTOT to try on sunglasses Warmack was, “‘an individual awaiting . . . medical care,’ and therefore a ‘patient,’ because the tool facilitates the provision of a medical device that protects vision.”
The judge stated that “sunglasses, even if non-prescription, protects one’s eyes from the sun and are Class I medical devices under the Food & Drug Administration’s regulations.” By using the VTOT to try on sunglasses Warmack was, “‘an individual awaiting . . . medical care,’ and therefore a ‘patient,’ because the tool facilitates the provision of a medical device that protects vision.” Specifically, Bucklo stated, though the plaintiff “may be right that VTOT users would be surprised to learn that ‘they were entering into a provider/patient relationship,’” the relevant test is “an objective application of the text of the exemption.” It does not matter if a consumer used the VTOT mainly for style or if she used it to find a prescription, they both constitute health care.
She continued and stated that Dior’s argument under the health exemption is not “such a stretch to count the trying on and provision of sunglasses, even in a virtual setting, as ‘health care’ alongside … more specific provisions.” She concluded by stating “this conclusion comports with the one reached by the other courts that have considered whether BIPA’s general health care exemption applies in the context of virtual try-on tools for eyewear.”
What does this mean for businesses using VTOT?
This is not the first case challenging the use of VTOT under the BIPA. However, as more brands begin to incorporate VTOT technology into their user experience, more arguments will be made concerning the balance between consumer’s privacy rights and the ability of businesses to utilize innovative technology to capitalize on the changing market habits of consumers. The dismissal of this case showcases that the current legal landscape is placing more emphasis on the ability of businesses to use innovative technology to connect with their online consumer base. As we look to the future, it is likely that more exceptions for the use of biometric data will be carved out by the courts, not just in Illinois, but across the country.
Julia Vaughan-Jones is a second-year law student from Mocksville, North Carolina. She is a Double Tar Heel, graduating from the University of North Carolina at Chapel Hill with a degree in Public Relations and a minor in History. While she was in undergrad, she was a four-year member of the UNC Cheerleading Team. In law school, Julia is a staff member on the North Carolina Journal of Law and Technology, a Dean’s Fellow, and an executive board member on both Women in Law and Law Students Against Sexual and Domestic Violence.