How an Emerging Fitness Trend Can Become an Industry Threat

IHRSA’s mission is to grow, promote, and protect the health and fitness industry. One of the ways we do this is by ensuring you are aware of and protected from regulatory issues. Accomplishing this means tracking, reporting, and lobbying on legislation that could harm your business.

We don't keep this information all to ourselves though. IHRSA believes in sharing actionable intelligence with you, including:

• specific threats to your business operations, and
• emerging trends that can inform your strategy for growing your business.

The Evolution from Emerging Trend to Industry Threat

The issue on how the industry uses biometric data and how governments seek to regulate this usage is an excellent example of how IHRSA’s tracking process works and how IHRSA strives to keep you ahead of the game.

Biometric data is the overarching term for any personal information captured, converted, or stored, based on an individual’s unique biological or physical characteristics. Clubs are increasingly using biometrics to tailor workouts, demonstrate tangible results, and monitor member and staff activity, using tools such as:

• fingerprint and body composition scans,
• VO2 max testing,
• iris scans and facial recognition.

The possibilities that biometric data brings to club operations and fitness programming are exciting, and recent observations show biometrics are poised to explode in their industry uses and applications.

With this surge in usage, comes regulation. Currently, 28 countries have laws regulating the collection and use of biometric data. In the U.S., there is no federal law governing the collection and use of biometric data, but states are beginning to step into this regulatory void.

After seeing this worldwide surge in regulation, and talking with IHRSA member clubs and suppliers, IHRSA has moved biometric data from emerging trend status to a potential threat to the fitness industry.

Why the surge in regulation? The use of biometrics has some concerned about the erosion of privacy and potential civil rights issues. Lawmakers are increasingly interested in biometric data and what it means for individuals’ privacy and are actively looking to regulate the collection and use of biometric data.

IHRSA supports protections for individuals, companies, and employees' privacy. We also recognize the potential cooling effect such regulation could have on innovation in the industry.

Flagging Potential Issues

It began with flagging biometrics as a potential issue for the health club industry, following the regulatory trends both domestically and globally and reporting back to the IHRSA board.

Once it was clear that the collection and use of biometric data is uniquely essential to the future of the fitness industry, the IHRSA Board of Directors took an official position on the issue. IHRSA supports legislation that protects individuals, companies, and employees’ privacy while ensuring the continued development and use of technological innovation that enhances the consumer experience and management of clubs.

Since then, IHRSA has been tracking, reporting on, and lobbying on biometric data bills.

As of the publication of this article, 12 states are considering proposals restricting the use of biometric data, and Congress has jumped in as well with a proposal around facial recognition technology. How these biometric data laws are written and interpreted will have a drastic effect on how valuable biometric data ultimately is to health clubs and other businesses moving forward.

Increased Chance of Lawsuits

Currently, only Illinois, Texas, and Washington have privacy laws regulating the collection and use of biometric data. The most extensive law dealing with biometric data is Illinois’ Biometric Information Privacy Act (BIPA) which became law in 2008.

BIPA sets requirements companies must follow if they wish to collect and use biometric data. It also includes a private right of action resulting in $1,000 per offense or actual damages, whichever is greater. "Private right of action" refers to the ability of consumers themselves to sue companies directly for perceived violations of regulations. Though it’s been on the books since 2008, BIPA has become a new focus for trial attorneys in Illinois, who are suing health clubs under this law.

Unfortunately for club operators, many states are using this law—and its private right of action—as a model for their legislation. For instance, lawmakers in Rhode Island, Florida, and New York modeled legislation on Illinois’ BIPA law, including the private right of action.

Confusing & Vague Legislation Bad for Businesses

Class-action lawsuits are not our only concern. New Hampshire House Bill 536 is an excellent example of lawmakers’ rushing to address a perceived problem before completely understanding the issues complexities and unintended consequences.

New Hampshire H.B. 536, uses a definition of biometric information so broad that it is almost impossible to determine what would fall under the law and what would not. The bill also has an ambiguous standard for determining if a business has violated the proposed legislation, likely creating confusion for health clubs on how to comply.

In addition to New Hampshire, Arizona, Florida, and Oregon have proposed bills regulating biometrics, which could reappear in the coming 2020 session.

IHRSA will continue to track, report, and lobby on this issue and more in 2020. That’s what we do: Take a long-term industry-focused look at an issue, then give you the actionable intelligence you need to know not only what is happening now, but what is coming around the bend.