Up in Smoke: Why Regulating Social Media like Big Tobacco Won’t Work (Yet!)

Lawmakers, pundits, and tech executives’ assertion that social media should be regulated like tobacco in order to protect American teenagers is oversimplistic. While the comparison makes for a good sound bite for the press, the argument disregards the inherent differences between regulating a physical product that has no constitutional protection and a virtual product that can implicate both users’ and social media companies’ First Amendment rights. This paper will identify and analyze some of the main pillars of the tobacco regulatory scheme and apply them to social media products. In Part I, I will define social media and provide a summary of documented harms, or lack thereof, that are correlated to teenage social media use. I will then make an argument for why the federal government would be interested in regulating the industry as opposed to encouraging teenagers to remove themselves from the platforms. In Part II, I will provide a brief summary of the tobacco regulatory scheme, both past and present. I will demonstrate how the tobacco regulatory scheme developed over decades and how it has been constitutionally challenged. In Part III, I will analyze two pillars of the tobacco regulatory scheme—age restrictions on access and mandated health warnings—and apply them to social media products. In doing so, I will demonstrate that there will likely be constitutional challenges if either of these provisions were adopted. Finally, in Part IV, I will offer a brief legislative recommendation in order to avoid future constitutional challenges to a potential social media regulatory scheme