Dior recently defeated an Illinois Biometric Information Privacy Act (“BIPA”) putative class action on the pleadings by arguing that BIPA’s exemption for patient data captured in a health care setting covered the plaintiff’s use of Dior’s virtual try-on tool while shopping for non-prescription sunglasses.  See Warmack-Stillwell v. Christian Dior, Inc., No. 1:22-CV-04633 (N.D. Ill. Feb. 10, 2023). 

The plaintiff, Delma Warmack-Stillwell, filed a putative class action against Christian Dior, Inc. (“Dior”), contending that Dior violated BIPA because it profits (by virtue of an improved shopping experience) from the collection, storage, and use of customers’ facial geometry scans generated by the virtual try-on tool hosted on Dior’s website.  The plaintiff also asserted that Dior violated BIPA by failing to have a publicly available written policy for the retention and destruction of biometric data, and by failing to get her informed consent before collecting her biometric data.

Dior moved to dismiss, arguing in relevant part that BIPA’s statutory exclusion for “information captured from a patient in a health care setting” applies to the facial scans that allegedly were captured while the plaintiff virtually tried on sunglasses.  The plaintiff argued that she does not qualify as a “patient” because she was shopping for non-prescription sunglasses, not prescription glasses, and that Dior’s website is not a “health care setting.” 

The district court agreed with Dior, holding that even though the plaintiff was not trying on prescription glasses with Dior’s virtual try-on tool, she was still a “patient” within the meaning of BIPA because the non-prescription sunglasses she tried on “protect one’s eyes from the sun and are Class I medical devices under the Food & Drug Administration’s regulations.”  The court further reasoned that Dior’s virtual try-on tool “facilitates the provision of a medical device that protects vision,” and therefore the tool captured her facial scans in a “health care setting,” regardless of whether she was motivated to shop for the sunglasses for fashion purposes or for health purposes.

This ruling from the Northern District of Illinois may prove useful to other defendants who similarly fall into the health care exemption for BIPA.