L’Oreal class action over virtual try-on tool seeks dismissal

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Update: 

• L’Oreal asked a judge to toss a class action lawsuit alleging its virtual try-on tool collects users’ biometric facial information without their informed consent.
• In a motion to dismiss filed Sept. 23 in an Illinois federal court, L’Oréal USA said the lawsuit filed by customer Morgan Kukovec should be thrown out, arguing that Kukovec gave informed consent before her biometric data was collected. 
• Kukovec alleges the “Try It On” feature on the makeup company’s websites that allows consumers to test a product virtually illegally collects users’ facial data. 
• However, L’Oréal argues that Kukovec agreed to the terms of use prior to using the tool and that those terms also contain an enforceable arbitration provision. 

L’Oreal class action lawsuit overview:

• Who: Plaintiff Morgan Kukovec filed a class action lawsuit against L’Oreal.
• Why: L’Oreal offers a virtual try-on tool that allegedly violates the Illinois Biometric Information Privacy Act (BIPA).
• Where: The L’Oreal class action lawsuit was filed in Illinois federal court.

(07/28/2022)

L’Oreal USA Inc. d/b/a L’Oreal Paris is facing a class action lawsuit alleging its virtual try-on tool collects users’ biometric facial information without their informed consent.

Plaintiff Morgan Kukovec points to the “Try It On” feature on the makeup company’s websites that allows consumers to test a product virtually. To use this tool, customers can upload a photo of themselves or use their phone or computer camera to display a photo of themselves.

The virtual try-on tool is powered by ModiFace, an application that captures facial geometry from users’ photos to accurately overlay virtual makeup products onto the image.

L’Oreal class action says failure to notify consumers about collection of facial data violates BIPA

The L’Oreal class action lawsuit says the company fails to inform users that the “Try It On” feature scans, collects, and uses their biometric facial data without first obtaining their informed consent in violation of the Illinois Biometric Information Privacy Act (BIPA).

The Illinois General Assembly enacted BIPA to protect Illinois residents’ privacy rights, the L’Oreal class action lawsuit explains. In enacting this privacy law, lawmakers determined that biometric information, which include fingerprints, faceprints, iris scans and voiceprints, is different from other types of unique identifiers because they cannot be changed if compromised.

Under BIPA, companies that collect certain biometric data must first obtain consumers’ informed consent before collecting the data and take steps to protect it. Additionally, they must inform consumers about their policy regarding the use, retention and destruction of biometric data.

The L’Oreal class action lawsuit alleges the makeup company does not notify consumers that their facial geometry will be collected or the specific purpose and length of time for which it is collecting, storing or using that data as required under BIPA.

BIPA violations may result in damages of $1,000 to $5,000 per violation.

Kukovec filed the L’Oreal class action lawsuit on behalf of herself and a proposed class of other Illinois consumers whose biometric identifiers were captured by the virtual try-on tool on one of L’Oreal’s websites.

In related L’Oreal news, in May, L’Oreal asked a judge to dismiss a class action lawsuit alleging the beauty company falsely advertises its beauty products as being made in Paris.

What do you think about the privacy allegations in the L’Oreal class action lawsuit? Join the discussion in the comments below!

Kukovec is represented by Elizabeth C. Chavez, Bret K. Pufahl, Kathleen C. Chavez and Robert Foote of Foote Mielke Chavez & O’Neil LLC and by Hassan A. Zavareei, Glenn E. Chappell and Allison W. Parr of Tycko & Zavareei LLP.

The L’Oreal class action lawsuit is Morgan Kukovec v. L’Oreal USA Inc. d/b/a/ L’Oreal Paris, Case No. 1:22-cv-03829, in the U.S. District Court for the Northern District of Illinois, Eastern Division.

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