Lawsuits Claim Estée Lauder, L’Oréal Virtual Try-On Tools Violate Illinois Privacy Law

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A West Chicago resident has filed two proposed class action cases that respectively allege Estée Lauder and L’Oréal have violated an Illinois privacy law by collecting residents’ biometric information through online virtual try-on tools.

Defendant Estée Lauder Companies sells cosmetics under the Too Faced, MAC Cosmetics, Smashbox, Estée Lauder and Bobbi Brown Cosmetics brands, and defendant L’Oréal USA Products sells items under the L’Oréal Paris, Maybelline, NYX Cosmetics, Yves Saint Laurent, Shu Uemura, Lancome, Urban Decay, Giorgio Armani and Garnier brands. Per the suits, each brand has a website through which consumers can virtually “try on” cosmetic products by uploading a picture of their face or initiating a live video feed through the companies’ facial recognition software, which then displays what certain lipsticks, foundations and other items would look like when applied to the customer’s face.

The lawsuits claim, however, that the defendants have violated the Illinois Biometric Information Privacy Act (BIPA) by collecting and using scans of residents’ facial geometries without first obtaining consent to do so and providing proper disclosures regarding how the information will be used and retained.

The complaints state that when a consumer views certain products on Estée Lauder and L’Oréal’s respective websites, they are presented with a “Try It On” option that, when clicked, opens a pop-up window that allows the person to use their web or phone camera to view a real-time photo of themselves or upload a photo from their device. The customer can then choose to either overlay the cosmetic product onto the photo of their face or view a split-screen that virtually displays the makeup applied to half of their face, the suits relay. From there, the tool allows users to download the picture of the makeup applied to their face, according to the complaints.

Per the suits, the virtual try-on tool on L’Oréal’s websites works by capturing a user’s facial geometry through an application called ModiFace, which supposedly uses “highly accurate 3D facial micro-feature tracking,” while The Estée Lauder Companies uses similar technology from a different developer.

The cases respectively claim, however, that L’Oréal and Estée Lauder have violated the Illinois BIPA by failing to obtain informed written consent from website visitors before capturing their biometric data. According to the suits, the defendants have failed to provide customers with certain information required by the BIPA, including disclosures, in writing, concerning:

• The fact that their biometric information is being collected or stored;
• The specific purpose and length of time for which the information will be collected, stored and used; and
• A publicly available retention policy and guidelines specifying when the data will be destroyed.

Moreover, the companies have failed to obtain a written release from customers to collect their biometric information, as required by the BIPA, the lawsuits claim.

Although both Estée Lauder and L’Oréal purportedly attempt to inform customers through their respective privacy policies that their biometric information will be collected, the “cursory” statements in these policies do not amount to proper disclosure under the BIPA, the cases argue.

The lawsuit against The Estée Lauder Companies looks to represent anyone whose biometric identifiers were captured by the retailer through the use of the virtual try-on tool on its websites, including toofaced.com, maccosmetics.com, smashbox.com, esteelauder.com and bobbibrowncosmetics.com, while residing in Illinois within the past five years and until the present.

The lawsuit against L’Oréal looks to represent anyone whose biometric identifiers were captured by the company through the use of the virtual try-on tool on its websites, including lorealparisusa.com, maybelline.com, nyxcosmetics.com, yslbeautyus.com, shuuemura-usa.com, lancome-usa.com, urbaydecay.com, giorgioarmanibeauty-usa.com and garnierusa.com, while residing in Illinois within the past five years and until the present.

Initially filed in Illinois state court, the lawsuits were both removed to the state’s Northern District Court on March 18, 2022.

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