For almost two years now, online retailers that utilize virtual try-on (“VTO”) tools have faced a barrage of class action litigation alleging that their technology violates the Illinois Biometric Information Privacy Act (“BIPA”). During this period, a powerful defense has emerged for the targets of VTO suits, and online eyewear retailers in particular—BIPA’s health care exemption.
Relying on this exemption, Frames for America, Inc. (“FFA”) defeated a class action lawsuit alleging it improperly collected shoppers’ face geometry data through its VTO tool in violation of Illinois’s biometric privacy statute. The opinion—Svoboda v. Frames For America, Inc., No. 21 C 5509, 2022 U.S. Dist. LEXIS 162077 (N.D. Ill. Sept. 8, 2022)—illustrates the strength of this defense to procure outright dismissals in BIPA class actions involving eyewear brands.