Virtual try-on is being hit by class actions. Should brands worry?

This article on virtual try-on is part of our Vogue Business Membership package. To enjoy unlimited access to Member-only reporting and insights, our NFT Tracker and TikTok Trend Tracker, weekly Technology and Sustainability Edits and exclusive event invitations, sign up for Membership here. Virtual try-on, which gives customers the ability to wear digital product renders using augmented reality, has largely maintained the momentum it gained over the course of the pandemic: Carolina Herrera has offered AR try-on on its website; Prada, Gucci, Farfetch and Cartier have all offered it through Snapchat; and Charlotte Tilbury’s site has a “magic mirror” where shoppers can virtually try-on makeup looks before purchasing, to name a few. With the technology’s rise in popularity has come increased scrutiny. In the past year, brands including Dior, Louis Vuitton and Estée Lauder have been the subjects of lawsuits over their use of biometric data, meaning the physical characteristics of the consumers who use the tools. In October 2022, Snapchat settled a class action suit for $35 million. The fact that courts have allowed some virtual try-on cases to proceed — Louis Vuitton and Estée Lauder among them — is an early warning sign to brands to take data protection seriously, says Susan Scafidi, founder and director of the Fashion Law Institute. All four of these suits were brought forward under the Illinois Biometric Information Privacy Act (BIPA), which dictates that entities that use and store biometric information must comply with certain requirements in terms of disclosure and consent. This means that to enable virtual try-on, brands must disclose what types of personal data they are capturing and gain consumer consent in advance. As part of the act, private citizens can sue brands for violations. Since its Covid-driven rise, virtual try-on tech is a relatively new focus for firms that pursue BIPA class actions, says Robert D Boley, partner at law firm Arent Fox Schiff. Often, suits like this are more about money and litigation than the feature itself, says Staci Jennifer Trager, Nixon Peabody partner and leader of the firm’s fashion law practice. Still, the cases call attention to the types of considerations brands need to make before they trial digital products. Consumers are concerned with how brands collect and use their data. Apple’s 2021 requirement for apps to ask users if they consent to having their data tracked disrupts apps like Instagram’s ability to show users reliable targeted ads, limiting brands’ access to data — and related revenue. Virtual try-on has proved itself a useful tool for brands. According to Snap research, 66 per cent of customers who use AR are less likely to return their purchases (as they can better gauge fit). And 60 per cent of consumers are more encouraged to buy from brands that offer virtual try-on, according to a survey by consumer behaviour platform Piplsay. These sentiments, coupled with consumer openness to sharing data — when consensual — suggest that the benefits of virtual try-on are worth the added data disclosure trade-off. Matthew Drinkwater, head of the London College of Fashion’s Fashion Innovation Agency, isn’t surprised to see these lawsuits. “If brands fail to disclose what they’re using your data for and where they’ll be using it, it’s likely to prove controversial, particularly with something like biometric data that is perceived as being so personal,” he says. Navigating disclosure Virtual try-on lawsuit considerations vary according to the type of product and the types of disclosures in place. Dior, Louis Vuitton and Estée Lauder are the most high-profile luxury players that have been subject to BIPA suits. In all three cases, suits alleged that the companies failed to inform users of the biometric information collection, did not obtain written consent for collection, nor make written policy publicly available. In Warmack v Christian Dior, Dior was sued by plaintiff Delma Warmack-Stillwell for its virtual eyewear try-on tool that was available on its e-commerce site. Dior successfully moved to dismiss the suit based on a healthcare exemption that excludes “information captured from a patient in a healthcare setting” from the definition of “biometric identifier”. Dior argued that sunglasses are Class I medical devices under the FDA’s regulations, and Judge Elaine E Bucklo agreed. The brand might not be out of the woods yet, according to Arent Fox Schiff’s Boley, who expects that the healthcare exemption is likely to be appealed. Dior did not respond to requests for comment. Theriot v Louis Vuitton is still ongoing. In December 2022, Judge Denise Cote of the Southern District of New York tossed out one BIPA-centric claim, but kept the other in place, denying Louis Vuitton’s motion to dismiss. Louis Vuitton argued that it’s virtual try-on provider FittingTool that collects the data, not Louis Vuitton. The judge disagreed, finding that Vuitton takes active steps to collect users’ data by encouraging use of the tool. Nixon Peabody’s Trager expects Louis Vuitton to raise the healthcare exemption. The brand did not respond to requests for comment. Meanwhile, Estée Lauder’s motion to dismiss Kukovec v Estée Lauder Companies was also denied in November 2022. Estée’s disclosure was in the terms and conditions, which the court ruled the plaintiff did not have constructive knowledge of. A key point is whether a brand’s disclosures are “clear and conspicuous” enough. This presents challenges, Trager says, as there’s a lack of clarity about what constitutes clear and conspicuous. And, even if a brand has the right language, if it's buried away in the terms and conditions, this might not be sufficient. Many brands already incorporate these kinds of disclosures. The EU’s GDPR regulations, for instance, stipulate that brands and companies need to be clear with consumers about what data is collected, why, and how it will be used and deleted. They also need to obtain consent for sensitive data collection — including biometric data. Charlotte Tilbury offers a disclosure when a user clicks the virtual try-on button, noting that the company doesn’t obtain, collect, process or store a user’s data (image included) and that it will be deleted automatically from the browser when the page is closed. When downloading the Warby Parker app, which also has a try-on feature, users are notified that they may be asked to submit, or for permission to take, a photo or facial scan. The disclosure specifies the tools that it’s applicable to, the tech and its purpose (such as TrueDepth API technology to measure facial data points) and what it’s used for (to place AR glasses and guide sizing). Data isn’t stored or shared with third parties. At the time of the Snapchat lawsuit, the company told the Chicago Tribune that its Lenses tech does not collect biometric data that can identify a specific person, only a generic facial feature like an eye or nose. To add these disclosures typically means an extra click of a button for consumers, and people become immune to the buttons they press, Nixon Peabody’s Trager says. “It’s just going to be another button you’ll have to press before you can access the feature you really want.” Treating biometric data like financial information These class actions are limited to virtual try-on for eyewear and makeup because BIPA uses a limited definition of biometric information, zeroing in on “old-school fingerprints and cutting-edge facial recognition that are already used to identify individuals”, Fashion Law Institute’s Scafidi says. But, she cautions, biometric information can include any bodily characteristic or measurement — meaning clothing try-on is not necessarily exempt. Given this, “brands should be as cautious about collecting and storing physical details as they are — or should be — with regard to consumers' financial information,” Scafidi says. To safeguard, visible disclosure and consent seem to be the most logical safeguard. Plus, legal ramifications aside, data collection disclosures should be a no-brainer, Alexander Berend, CEO of virtual try-on company Zyler, says. In every call with clients, he tells brands that security and privacy transparency is something they should be thinking about straight off the bat. “I don’t think it needs to scare anyone,” he says. “The point of these laws is not to trip the retailers up. It’s to make sure that people are acting in good faith.” This is particularly the case when it’s information that should be handled carefully, such as body measurements and weight, as are often requested for virtual try-on capabilities. “Hopefully it’s kind of obvious that those are the types of things that should be handled sensitively,” Berend says. Luxury virtual try-on provider Bods takes a similar approach. “The most important thing when it comes to having a platform where users are providing personal information or images is transparency,” founder and CEO Christine Marzano says. “Making sure they are aware if their data is being stored, kept or shared, and allowing them the choice to opt in or out of those decisions.” Bods creates digital renderings of consumers from images to gauge fit, and is cognisant of the fact that users might not want to share their data. For this, they offer them the option of uploading body-only images or blurred faces — or even just measurements. “We do not store any images after the Bod is created and as a person’s Bod is focused on fit, it does not have any identifying features such as specific facial features, tattoos or birthmarks unless an end user decides to add those,” Marzano says. Moving forward Despite the current murky waters (exacerbated by the state-by-state regulation in the US), these suits are not expected to stall the development or uptake of virtual try-on tech. “I don’t think this will get in the way of the development of the virtual try-on industry,” Zyler’s Berend says, expecting this to continue to be driven by consumer demand, businesses seeing successful results and the state of the technology. “I see [the lawsuits] more as teething problems as this becomes bigger in the world.” LCF’s Drinkwater agrees. “It's inevitable that we'll be using more biometric data in our everyday lives, from opening our smartphones, to passing through airport security and using face filters and virtual try-on,” he says. “The really important element in all of these discussions, though, is security and how best to manage increasingly personal levels of data from being compromised.” Brands won’t be able to avoid lawsuits by deferring to third-party tech developers, Arent Fox Schiff’s Boley says, and they will need to add legal fees to their calculations, Fashion Law Institute’s Scafidi adds. This includes “prophylactic review of biometric data-collection policies and potential defence against lawsuits”, she says. “The additional expenses could make virtual try-on tech less affordable to small brands in the short run, but as with most technologies, legal costs will decline as practices standardise and the initial wave of lawsuits settles out,” Scafidi says. “Each of us moves through our virtual and physical worlds shedding valuable data about ourselves — biometrics, geolocation, finances — and privacy laws are still catching up to what tech companies realised years ago,” Scafidi says. “Regulation of biometric data-collection won't short-circuit virtual try-on tech, but it may slow progress enough for consumers to stop and think.” To receive the Vogue Business newsletter, sign up here. Comments, questions or feedback? Email us at feedback@voguebusiness.com. 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