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Cosmetics retailers Mary Kay and Ulta have both been slapped with class action lawsuits alleging they unlawfully scanned and stored people’s faces without their proper consent.
Both May Kay and Ulta have virtual try-on features on their websites, where consumers can have their faces scanned by the retailers and then “try on” different make-up products virtually.
However, the two new class action lawsuits filed last week in Illinois state court allege the companies’ use of the tools violate the Illinois Biometric Information Privacy Act (BIPA), Law360 reports.
In Plaintiff Marvalace Garrett’s class action lawsuit against Mary Kay, she says the company’s “Mirror Me” feature scans and collects the biometric facial data of consumers. However, she says Mary Kay never received permission from customers to collect this facial data.
She says the company also fails to inform consumers about the specific purposes and length of time that it intends to use their facial data. By law, it should have a publicly available policy governing its data collection, storage and destruction practices, she says.
In Plaintiff Fiza Javid’s class action lawsuit against Ulta, she says the company’s website and beauty programs make no mention that it is collecting consumer’s biometric data when they scan their faces to try on makeup virtually.
“If defendant’s database of scanned and digitized faces were to fall into the wrong hands, by data breach or otherwise, the consumers to whom these sensitive and immutable biometric identifiers belong could have their identities stolen, among other serious issues,” she reportedly says.
The beauty giant has almost 1,300 retail stores throughout the U.S. It launched its virtual try-on software Glam Lab in 2016, Javid says, and then acquired a technology startup in 2018, expanding its Glam Lab offerings.
The technology is now advanced enough that consumers can use their phone cameras and Ulta’s app to try on different shades of foundation, virtually, false eyelashes and hair colors.
Despite the perks, Javid says Ulta never explicitly states it is collecting people’s biometric facial data, or where or for how long it will be stored for.
Both Garrett and Javid are looking to represent Classes of Illinois residents whose biometric data was collected, captured, stored and used by Mary Kay or Ulta.
They’re seeking $1,000 in damages for every negligent BIPA violation and $5,000 for every willful BIPA violation.
College students are also taking action under BIPA. Students who were asked to use a facial recognition software to make sure they weren’t cheating in online exams are suing the software provider under the act, saying their biometric data was not kept safe.
In a proposed class action lawsuit filed in March, students claimed ProctorU violated the Illinois Biometric Information Privacy Act (BIPA) by failing to stop students’ data from being stolen and offered for sale on an online forum for hackers.
Do you trust online retailers with your facial data? Let us know in the comments!
Garrett is represented by Mason Barney of Siri & Glimstad LLP and Brandon Wise of Peiffer Wold Carr Kane & Conway LLP.
Javid is represented by Brian Hogan and Jonathan Jagher of Freed Kanner London & Millen LLP, and Gary Klinger of Mason Lietz & Klinger LLP.
The Mary Kay and Ulta BIPA Class Action Lawsuits are Marvalace Garrett v. Mary Kay Cosmetics Inc., Case No. 2021-CH-03124, and Fiza Javid v. Ulta Beauty Inc., Case No. 2021-CH-03109, in the Circuit Court of Cook County, Illinois, Chancery Division.
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