Try-on facial recognition apps land cosmetics firms in court

Try-on facial recognition apps land cosmetics firms in court

There was a day when try-on makeup apps were a gleaming promise of the coming Internet Age.

But like an uncomfortably large number of those promises made in the 1990s, facial recognition try-on software is trickier and more complex up close.

Two proposed class actions charge Mary Kay Cosmetics and Ulta Beauty with violating Illinois’ Biometric Information Privacy Act with their try-on apps, according to ClassAction.org.

In both cases, the companies scan consumers’ faces in order to digitally simulate how they would look using their respective color palettes.

Marvalace Garrett v. Mary Kay (case 2021CH03124) was filed June 25. In it, Garrett alleges that they used the vendor’s MirrorMe application to see how they would look like with various makeup products.

Garrett’s lawyers claim their client was not offered a written release to do or keep the scan, nor was there notice of when if ever the biometric data would be deleted.

They accuse Mary Kay of “burying” a fig-leaf clause about biometric data in its online marketing privacy policy, one that does not meet BIPA’s requirements.

Damages of $1,000 per negligent violation, $5,000 per “willful or reckless violation” or actual damages are being sought.

Lawyers for Fiza Javid have filed a similar suit (2021CH03109), this one against Ulta Beauty, June 24. Ulta markets its GLAMlab augmented-reality mobile app and other products using facial recognition algorithms.

They say the found deep in Ulta’s terms and conditions a note about how biometric data “is collected and stored (if you elect to share it) collectively by Ulta Salon, Cosmetics & Fragrance, Inc. and … related entities and affiliates.”

Javid is seeking the same payouts as Garrett, sums that are written into BIPA.

Attorney David Oberly, who represents would-be privacy defendants, has written about this topic, and has acknowledged the unique value of facial recognition data and tools based on that information. It can be a factor in sales, return purchases, brand awareness and lower product returns.

In fact, Oberly has said it is worth the expense of creating “robust, flexible biometric privacy programs” in accordance with BIPA.

He has written that several states are readying their own version of BIPA, which, if steps are not taken by businesses, could result in being sued simultaneously in multiple venues.

And, although arbitration might be losing its luster with corporate America, Oberly has said executives need to adopt the policies and class-action waivers in the hopes of minimizing potential losses.

What is more, he counsels executives not to get lured into the prospect of making money off reselling consumers’ data, which could result in data appearing anywhere on earth. The same goes for using the data to improve try-on applications, which is viewed as seeking to profit illegally from the data.

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