A major legal battle has erupted over the use of biometric data in virtual try-on software for eyewear. Plaintiff Macaire Marino filed a class action complaint against Gunnar Optiks LLC in the Circuit Court of Cook County on June 27, 2022, alleging that the company violated Illinois' Biometric Information Privacy Act (BIPA) by collecting facial geometry scans without proper consent.
The lawsuit centers around Gunnar Optiks LLC's "virtual try-on" software, which allows customers to see how they would look wearing different eyeglasses and sunglasses by scanning their facial features. Marino claims that this software collects, stores, and uses biometric identifiers—specifically facial geometry scans—without adhering to BIPA’s stringent requirements for handling such sensitive information. According to Marino, Gunnar failed to obtain informed consent from users or provide disclosures mandated by the Act.
Marino's complaint seeks not only monetary damages but also an injunction requiring Gunnar to comply with BIPA regulations moving forward. The plaintiff argues that the company’s actions constitute a severe invasion of privacy and breach statutory rights protected under BIPA. "Individuals possess a right to privacy in and control over their biometric identifiers and biometric information," Marino stated in her filing, quoting previous court interpretations of BIPA.
Gunnar Optiks responded by filing a motion to dismiss the case on November 15, 2022. The company argued that its collection of biometric data falls under a health care exclusion within BIPA because it pertains to eyewear—a product related to vision health. The Circuit Court partially agreed with Gunnar's argument, dismissing claims related to prescription eyewear but allowing those concerning non-prescription eyewear to proceed.
Seeking further clarity, Gunnar moved for an interlocutory appeal under Illinois Supreme Court Rule 308. The certified question posed was whether individuals using virtual try-on tools for non-prescription sunglasses could be considered patients in a health care setting under BIPA’s health care exemption. On August 30, 2024, the Appellate Court of Illinois ruled against Gunnar, stating that trying on non-prescription sunglasses does not qualify as receiving medical care in a health care setting.
The ruling emphasized that the term "patient" should be understood as someone awaiting or receiving medical treatment from a licensed professional. The court found no basis for extending this definition to include users of virtual try-on software for non-prescription products like sunglasses. "An individual who is trying on nonprescription sunglasses—unconnected to any specific medical advice, prescription, or need—is simply not within this statutory exclusion," wrote Justice Mikva in the opinion.
Attorneys representing Marino include Gary M. Klinger from Milberg Coleman Bryson Phillips Grossman PLLC and Brandon M. Wise along with Domenica M. Russo from Peiffer Wolf Carr Kane Conway & Wise LLP. Richard J. Miller from Miller Law Firm P.C., represents Gunnar Optiks LLC. The case is presided over by Judge Anna Loftus under Case ID No. 22 CH 06182.