Shiseido Cosmetic Products Virtual Try-On Tool Violates Illinois Privacy Law, Class Action Alleges

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A proposed class action claims Shiseido Americas Corporation has violated an Illinois privacy law in that the company’s virtual cosmetic product try-on feature collects, stores and uses consumers’ facial scans without consent.

According to the case, the virtual try-on tool available on Shiseido’s websites, including bareminerals.com, narscosmetics.com, lauramercier.com, and cledepeaubeaute.com, allows consumers to view how certain cosmetics products would look if applied to their faces. The lawsuit alleges, however, that the feature uses biometric technology to capture consumers’ facial geometries without first obtaining their written consent to do so, in apparent violation of the Illinois Biometric Information Privacy Act (BIPA).

Per the suit, the Illinois BIPA requires companies who collect state residents’ biometric information, including fingerprints, eye and retina scans, or scans of facial geometry, to first provide certain disclosures about how the data will be collected and destroyed, and obtain  written consent to collect and use the individuals’ biometric information.

Shiseido Americas Corporation is a global beauty company who sells various cosmetic products under brands such as Shiseido, Nars, Laura Mercier, Buxom, Tory Burch, Drunk Elephant, Clé de Peau Beauté, bareMinerals, Issey Miyake, Narciso Rodriguez and Dolce & Gabbana. Per the lawsuit, the defendant offers through its websites a virtual try-on feature that customers can access by clicking a “Try On,” “Try It On” or “Try Now” button below the picture of the product being viewed.

The suit relays that the virtual try-on tool, with which customers can see what a certain product would look like when applied to their face, requires a potential buyer to use their web or phone camera to capture a real-time photograph of their face or upload a photo previously saved to their device. The tool then overlays the makeup product on the image of the consumer’s face and allows them to download or email the photo, the case says.

The lawsuit alleges that the defendant’s virtual try-on feature is powered by the YouCan Makeup application, which uses biometric technology to capture the facial scans of those who appear in uploaded photos in order to accurately overlay makeup products.

The case claims, however, that Shiseido neither informs customers in writing that their biometric information will be captured nor states the purpose and length of time for which the data will be collected, stored and used. Moreover, the defendant does not ask for written consent before capturing Illinois residents’ biometric data or maintain a publicly available written policy establishing a retention schedule and guidelines for the permanent destruction of the data, the lawsuit attests. The lawsuit stresses that these are all requirements of the Illinois BIPA with regard to the collection of consumers’ biometric information.

The case looks to represent anyone whose biometric identifiers were captured by the defendant through the use of the virtual try-on tool on its websites while they resided in Illinois within the past five years.

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