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On
February
10,
2023,
an
Illinois
federal
district
court
ordered
the
dismissal
of
a
putative
class
action
lawsuit
alleging
that
an
online
tool
that
allowed
users
to
virtually
try
on
sunglasses
violated
the
Illinois
Biometric
Privacy
Act
(“BIPA”).
In
Delma
Warmack-Stillwell
v.
Christian
Dior
Inc.,
the
plaintiff
sued
French
luxury
brand
Dior,
and
alleged
that
it
violated
(1)
Section
15(b)
of
BIPA
by
failing
to
provide
notice
and
to
obtain
consent
when
collecting
her
biometric
information;
(2)
Section
15(a)
of
BIPA
by
failing
to
institute,
maintain
and
adhere
to
a
publicly
available
biometric
information
retention
and
destruction
policy;
and
(3)
Section
15(d)
of
BIPA
by
disclosing
or
otherwise
disseminating
her
biometric
information
to
third
parties
without
consent.
Dior
moved
to
dismiss
the
case
based
on
the
“health
care”
exemption
in
the
statute.
BIPA
excludes
“information
captured
from
a
patient
in
a
health
care
setting”
from
the
statute’s
definition
of
“biometric
identifier.”
740
ILCS
14/10.
Dior
argued
that,
because
sunglasses—including
the
non-prescription
sunglasses
at
issue
in
the
plaintiff’s
complaint—are
Class
I
medical
devices
under
the
Food
&
Drug
Administration’s
regulations,
the
facial
geometry
information
collected
from
the
patient
was
captured
“in
a
health
care
setting”
and
thus
was
exempt
from
BIPA’s
application.
U.S.
District
Judge
Elaine
E.
Bucklo
agreed,
finding
that
Dior’s
virtual
try-on
tool
“facilitates
the
provision
of
a
medical
device
that
protects
vision.”
Judge
Bucklo
concluded
that
the
health
care
exemption
applied
because
the
virtual
tool
“facilitates
the
purchase
of
sunglasses
to
wear
on
one’s
face—which
is
exactly
the
use
that
fulfills
that
product’s
medical
purpose.”
Because
BIPA
does
not
define
what
constitutes
a
“health
care
setting,”
this
case
provides
significant
guidance
on
the
scope
of
the
health
care
exemption.
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