Dior Sunglasses Are Health Care Treatment—Gunnar Optiks: Not So Much?

Today’s technology creates many great opportunities, and one of the coolest is the ability to virtually try on sunglasses on your computer screen. That is, if you don’t live in Illinois. Here in the Land of Lincoln, the law protects you from this invasion of your privacy via the Biometric Information Privacy Act (“BIPA”). Unless the glasses you want are from Christian Dior. Some explanation may be useful.

Under BIPA, collecting your personal biometric data without your permission is generally not allowed. Plaintiff Mecaire Marino claimed that Gunnar Optics violated BIPA by capturing her biometric facial information when she used the Gunnar website to try on both prescription and non-prescription glasses. The trial court distinguished between the two types of eyewear, finding that Marino was a “patient in a healthcare setting” in trying on the prescription glasses and that therefore capturing her biometric data came within a statutory exclusion. But uncertainty as to the exclusion’s application to non-scrip sunglasses caused the court to certify that question to the First District Appellate Court.

Judge Mikva, writing for the appellate panel, was not persuaded that a person trying on sunglasses is a patient seeking medical care. As a result, the court answered the certified question in the negative—the exclusion does not apply if the user is admiring her appearance in over-the-counter sunglasses.

As Judge Mikva discussed in her opinion, there are federal court cases that go the other way. In one of them, shoppers virtually trying on Dior sunglasses were deemed to be patients in a healthcare setting even though there was no prescription involved. So, the exclusion appears to protect the fashion mogul from BIPA liability, at least in cases pending in federal court. Dior’s confidence in this protection appears to be a little shaky, however. In order to use their virtual try-on feature, you must certify that you are not a resident of Illinois, the only state with BIPA protection. So, living in Illinois may make you a little less cool, but at least your biometric data is your own.

The Gunnar Optiks case is Marino v. Gunnar Optiks LLC, 2024 IL App (1st) 231826