A federal district court has denied a motion by Johnson & Johnson Consumer Inc. (JJCI) to dismiss a second amended complaint alleging it violated the Illinois Biometric Information Privacy Act (BIPA) by collecting and storing biometric information through its Neutrogena Skin 360 beauty app without consumers’ informed consent or knowledge. The plaintiffs also allege that the biometric information collected through the app is then linked to their names, birthdates, and other personal information.
Plaintiffs alleged that the Skin360 app is depicted as “breakthrough technology” that provides personalized at-home skin assessments by scanning faces and analyzing skin to diagnose enigmas like wrinkles, fine lines, and dark spots. The app then uses that data to recommend certain Neutrogena products for the consumer to eliminate those concerns. JJCI argued that the Skin360 app recommends products designed to improve skin health, which means that the consumers should be considered patients in a healthcare setting, making BIPA inapplicable.
However, the court disagreed and cited Marino v. Gunnar Optiks LLC, 2024 Ill. App. (1st) 231826 (Aug. 30, 2024), which held that a customer trying on non-prescription sunglasses using an online “try-on” tool is not considered a patient in a healthcare setting. In Marino, the court defined a patient as an individual currently waiting for or receiving treatment or care from a medical professional. Alternatively, Skin360 uses artificial intelligence software to compare a consumer’s skin to a database of images and provides an assessment based on a comparison of these images. Of course, JCCI did not dispute that no medical professionals are involved in providing the service through the Skin360 app.
The court stated that “[e]ven assuming Skin360 provides users with this AI assistant and ‘science-backed information’ the court finds it a reach to consider these services ‘medical care’ under BIPA’s health care exemption; [i]ndeed, Skin360 only recommends Neutrogena products to users of the technology, which suggests it is closer to a marketing and sales strategy rather than to the provision of informed medical care or treatment.”