Seventh Circuit Revives BIPA Suit Over Gunnar's Virtual Try-On, Narrowing the Health Care Exemption

Seventh Circuit Revives BIPA Suit Over Gunnar's Virtual Try-On, Narrowing the Health Care Exemption

On July 10, 2026, the U.S. Court of Appeals for the Seventh Circuit reinstated a biometric-privacy class action against eyewear maker Gunnar Optiks, ruling that its face-scanning "virtual try-on" tool appears aesthetic rather than medical and cannot rely on the health care exemption in Illinois's Biometric Information Privacy Act to win dismissal at the pleading stage.

Information last verified on July 17, 2026. This is a developing story; we update it as the record changes.

Status: On July 10, 2026, the Seventh Circuit vacated the dismissal and remanded the case to the district court. The ruling revives the lawsuit; it does not decide whether Gunnar actually violated BIPA. That question returns to the trial court.

Jurisdiction scope: This article covers a federal appellate ruling applying Illinois's Biometric Information Privacy Act, 740 ILCS 14. BIPA is an Illinois statute; other states' biometric-privacy laws differ, and this ruling does not address them.

What Happened

William Clements sued Gunnar Optiks under the Illinois Biometric Information Privacy Act, alleging that the company's online virtual try-on feature scanned the geometry of his face so he could see how different frames would look, and that Gunnar did so without the written, informed consent and the published data-retention schedule that BIPA requires. The district court dismissed the case, accepting Gunnar's argument that the scans were covered by BIPA's exemption for information used for health care treatment. In an opinion issued July 10, 2026, the Seventh Circuit vacated that dismissal and sent the case back for further proceedings. William Clements v. Gunnar Optiks, LLC, No. 25-1890 (7th Cir. 2026).

Writing for the panel, Judge Frank Easterbrook focused on the exact words of the exemption, which removes from BIPA information "collected, used, or stored for health care treatment, payment, or operations under" HIPAA. The court emphasized the words "for" and "treatment." Prescription lenses, it acknowledged, are a form of medical treatment, and eyewear recommended to relieve eye strain might also count, but "better-appearing glasses are not medical treatment." The court described Gunnar's virtual try-on service as "aesthetic, not medical," even though the glasses it sells serve a health-related function.

The panel also pointed to the exemption's requirement that the data be handled "under" HIPAA, which raises a factual question, namely whether Gunnar actually complied with HIPAA, that the complaint did not resolve. For those reasons, the court held that the health care exemption could not justify dismissing the case at the pleading stage. It vacated the dismissal and remanded, so the suit can proceed, without deciding whether Gunnar in fact violated BIPA.

What the Law Actually Says

BIPA, codified at 740 ILCS 14, regulates how private entities may collect and handle "biometric identifiers" such as a scan of face geometry. Section 15(b) requires a company to obtain a written release after informing the person that biometric data is being collected and why, and Section 15(a) requires a published schedule for retaining and destroying that data. The statute lets individuals sue for violations and recover liquidated damages, which is why BIPA has produced some of the most active privacy litigation in the country. Our explainer on BIPA, Illinois's biometric privacy law, walks through those duties in detail, and a separate guide covers what a BIPA violation can be worth.

The health care exemption at issue here, found in Section 10, carves out information "collected, used, or stored for health care treatment, payment, or operations under" HIPAA. Retailers have leaned on it to defend face-, skin-, and eye-scanning try-on and product-finder tools, arguing the underlying product is health-related. On the Seventh Circuit's reading, the question is not whether the product serves a health function, but whether the biometric data was collected for treatment and handled under HIPAA, so a company cannot win dismissal simply by pointing to the health-relatedness of what it sells. Readers weighing whether they may have a biometric-privacy claim should note that BIPA's rules turn on how and why the data was collected, not on the label a company gives its tool. How these protections compare across states is covered in our overview of state biometric-privacy laws.

Analysis: Why This Matters

The following is analysis from the Recording Law Editorial Team.

Virtual try-on tools have spread across eyewear, cosmetics, and apparel sites, and defendants have repeatedly invoked BIPA's health care exemption to escape these suits early. The Seventh Circuit's opinion makes that harder in the circuit that hears most BIPA appeals. By anchoring the exemption to the purpose of the collection, treatment, rather than to the general health-relatedness of the product, the court gives plaintiffs a clean answer to a common motion-to-dismiss argument.

It is worth being precise about what the ruling does and does not do. It does not hold that Gunnar violated BIPA. It holds only that one specific defense does not dispose of the case at the pleading stage, so the suit continues. This fits a broader pattern in which the Seventh Circuit has repeatedly addressed BIPA's mechanics, including an earlier decision on how BIPA's damages amendment applies. Companies that run face-scanning features and have treated the health care exemption as a reliable shield now have reason to revisit their consent and retention practices instead. We are not predicting how Gunnar's case resolves on remand.

How This Affects You

If you used an online try-on tool that scanned your face while shopping in Illinois, this ruling keeps the door open to claims that the scan required BIPA consent, but it does not decide any individual's case. Whether a given tool triggers BIPA depends on facts: what data was captured, whether written consent was obtained, and whether a retention schedule existed.

For businesses that operate try-on or product-matching features touching Illinois users, the practical takeaway is that calling a feature "health-related" is not, by itself, a defense. General information is not legal advice, and any company assessing its exposure should consult counsel experienced in BIPA about its specific data flows.

This is general legal information, not legal advice. It describes a Seventh Circuit ruling issued July 10, 2026 and reflects sources verified on July 17, 2026. Laws change and this case is developing on remand; consult a lawyer licensed in your jurisdiction about your specific situation.

Related articles

• BIPA, Illinois's biometric privacy law
• What a BIPA violation can be worth
• Whether you may have a biometric-privacy claim
• State biometric-privacy laws compared
• A similar BIPA suit over Apple's Face ID

---

Last updated: 2026-07-17. This is a developing story; details verified as of 2026-07-17.

Frequently Asked Questions

What did the Seventh Circuit decide in the Gunnar Optiks case?

On July 10, 2026, the court vacated the dismissal of a BIPA class action and sent it back to the district court, holding that Gunnar's virtual try-on face scans appear aesthetic rather than medical and that the health care exemption could not justify dismissing the case at the pleading stage.

Does the ruling mean Gunnar Optiks violated BIPA?

No. The Seventh Circuit only rejected one defense and revived the suit. Whether Gunnar actually violated BIPA is now back before the trial court.

What is BIPA's health care exemption?

Section 10 of BIPA (740 ILCS 14/10) excludes information collected, used, or stored for health care treatment, payment, or operations under HIPAA. The court read it to turn on whether the data was collected for treatment and handled under HIPAA, not merely on whether the product is health-related.

Why couldn't the virtual try-on tool win dismissal under the exemption?

The court reasoned the tool's purpose was to show how frames look, which it called aesthetic rather than medical, and noted the exemption applies only to data handled under HIPAA, a factual question the complaint did not resolve. Those points were enough to let the suit proceed past dismissal; the court did not finally decide the exemption question.

What does BIPA require companies to do before scanning biometric data?

Under Section 15, a company must inform the person in writing that biometric data is being collected and why, obtain a written release, and maintain a published schedule for retaining and destroying the data.

Does this ruling apply outside Illinois?

BIPA is an Illinois statute, and this is a federal appellate ruling interpreting it. Other states have their own biometric-privacy laws that differ, so the specific holding is limited to BIPA.