Mary Kay, Ulta Virtual Product ‘Try On’ Tools Subject of Biometric Privacy Class Actions in Illinois

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Separate proposed class actions allege Mary Kay Cosmetics and Ulta Beauty have failed to provide mandatory biometric information privacy disclosures to those who use the companies’ virtual makeup try-on tools. 

According to the lawsuits, Mary Kay’s “MirrorMe” program and Ulta’s “GLAMlab,” “Skin Analysis” and “Foundation Shade Matcher” allow consumers to virtually “try on” different types of beauty products by scanning and using their facial geometries or “landmarks” from a photo or video. The suits allege, however, that Mary Kay and Ulta have failed to satisfy the strict notice requirements of the Illinois Biometric Information Privacy Act (BIPA) before scanning, collecting, storing and using customers’ and potential customers’ facial geometries.  

“The [BIPA] expressly obligates Defendant to obtain an executed, written release from an individual, prior to the capture, collection, and/or storage of an individual’s biometric identifiers or biometric information, especially a facial geometry scan, and biometric information derived from it,” the lawsuit against Mary Kay states. “Burying a vague reference to biometric information in an online privacy notice is not sufficient to comply with BIPA’s requirements.” 

More specifically, the complaint stresses that entities such as Mary Kay are obligated to inform virtual “try on” users in writing that a biometric identifier or biometric information is being collected or captured; the length of time that their biometric data will be stored; and the purposes for which the information is being captured, collected and used. They must also make a written policy available that discloses when the information will be permanently destroyed, the suit says. 

According to the cases, the BIPA’s notice requirements are a precondition to the collection of facial biometric data, and the sensitive information cannot be captured, collected, bought or otherwise obtained in the event the disclosure mandates are not satisfied. 

“The State of Illinois takes the privacy of biometric data seriously,” the suit against Mary Kay continues. “There is no realistic way, absent surgery, to reassign someone’s biometric data. A person can obtain a new social security number, but not a new face, which makes the protection of, and control over, biometric identifiers and biometric information critical.” 

The lawsuit against Ulta relays that in order for a consumer to use the retailer’s virtual “try on” programs, they must turn on and use their cameras or upload a picture of themselves, at which point the company scans their face and virtually applies makeup, hair color and other items. Ulta does not notify consumers beforehand that the facial geometry will be collected, stored, used and shared between the company and related entities and affiliates, the case alleges. 

As with the suit against Mary Kay, the complaint against Ulta contends that the company’s disclosure regarding the collection of biometric information in only its privacy policy is not sufficient for the purposes of the BIPA. 

Both complaints can be found below. The suits ask the court to award proposed class members, i.e., those whose information was captured, stored and used by Mary Kay and Ulta while using their respective “try on” augmented reality programs, $1,000 for every negligent BIPA violation and $5,000 for every willful abuse.

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