Following the COVID-19 pandemic, retailers in the fashion, apparel and beauty industry implemented innovative virtual try-on programs to allow consumers to more easily view and select products remotely rather than in-store. These virtual try-on programs have led to an increased risk of litigation over alleged biometric data privacy violations. While other industries have confronted biometric data lawsuits in everything from virtual exam proctoring to anti-theft surveillance programs used in stores, the emergence of biometric privacy data violation lawsuits is new to the fashion, apparel and beauty industry.

Virtual Try-On Programs

To replicate the experience of trying on a pair of eye- or sunglasses or swatching a makeup sample in store, retailers began using software that allows consumers to upload a picture of their face to the website and then virtually wear the glasses or apply the makeup. This allows consumers to see what a pair of glasses will actually look like on, or to better determine which shade of a cosmetic is the most flattering.