Regulating Big Tech Like Big Tobacco: Same Playbook, Same Mistakes
An infinite loop of moral panic
Of all the rhetorical devices employed by purveyors of social media panic to convince the public that “something must be done,” one sticks out as a clear favorite: “Big Tech is the new Big Tobacco.”
Senator Richard Blumenthal, never one to miss an opportunity to remind everyone that he sued tobacco companies in the 90s, confidently asserted that the “parallel is striking.” A former state attorney general teamed up with a former federal prosecutor to argue that “it’s time . . to dust off the Big Tobacco playbook” and hold Facebook “accountable” for everything from social discord to teen mental health. Surgeon General Vivek Murthy boldly declared that Congress should make social media platforms display warning labels like those found on packs of cigarettes. Countless other legislators, government officials, and pundits have rabidly repeated the refrain.
It’s easy to understand the appeal of this strategy: it co-opts the lingering, visceral resentment still felt toward an industry that concealed the inherently deadly nature of cigarettes and easily redirects it to a new enemy. And it allows the Something Must Be Donenites to give the impression that there is an obvious and battle-tested solution to the supposed evils of social media: why not use the same playbook that has successfully held tobacco companies to account and reined in their worst practices? It worked once, after all, right?
The problem, of course, is that different things are different. Provided that one has the motivation to look beyond rhetorical sleight-of-hand, the fundamental differences—physically, normatively, and legally—between a cigarette and a social media platform are fairly obvious and easy to intuit. The comparison does not survive even the slightest application of common sense, let alone nuanced thought and well-established First Amendment jurisprudence. But that’s a topic for another article.
Shameless false equivalence aside, the notion of transposing tobacco control to Internet services is baffling on an entirely separate ground. The current state of tobacco regulation rests (charitably) somewhere between “extreme dysfunction” and “unmitigated, actively harmful disaster”—not exactly the kind of regulatory regime one ought emulate. Nobody is happy with it, not even its greatest in-principle supporters. The overwhelming and unanimous discontent was on full display in two congressional hearings this year, one held in April by the House Oversight Committee and the other in June by the Senate Judiciary Committee, where FDA Commissioner Robert Califf took a thrashing from pretty much everyone over his agency’s handling of e-cigarettes (which I’ll use interchangeably with “vapes” for present purposes).
As it turns out, a closer look at how things are going with tobacco control does reveal some striking parallels. But contra Senator Blumenthal, those parallels aren’t between the products, or industry behavior. Instead, the most striking parallels are those between the regulatory efforts themselves and the casual abandonment of facts, nuance, and thoughtfulness that results from a “Do Something” moral panic.
The Meta-Parallel: Different Things are Different
Even the failure to account for categorical differences itself has a parallel in the story of tobacco regulation. Indeed, the term “tobacco control” is something of a misnomer these days. We’ve long since discovered that the uniquely harmful effects of cigarettes are caused by inhaling the byproducts of tobacco combustion, i.e., smoke, which include numerous carcinogens and toxic compounds. But as vaping grew in popularity starting in the late aughts, so did moral panic over something seen as akin to smoking. And helping to drive that panic was serious public misperception about the risks of vaping, especially relative to smoking combustible tobacco products. Rather than help correct these misunderstandings and advocate for a science-based approach, the government took a hard turn in the other direction. In 2016, urged on by Congress and moral panickers, the FDA promulgated a rule “deeming” Electronic Nicotine Delivery Systems (ENDS), i.e., vapes, to be “tobacco products” subject to the same regulatory regime as cigarettes.
Of course, what vapes share in common with cigarettes is not tobacco, it’s nicotine. And nicotine itself, while addictive, poses relatively minor health risks; some public health professionals have even described it as “no more harmful to health than caffeine.” (To be sure, there is evidence that nicotine use by adolescents or pregnant individuals can be harmful— but that’s the case with many other products that are relatively safe for the vast majority of adults to use). So why regulate these non-tobacco products like they are tobacco products? Given our nation’s historical prohibitionist bent, one might reasonably question whether it’s simply the same old reflexive opposition to any substance that makes people feel good. But they certainly can’t say that part out loud, so proponents gave us another ostensible justification for treating vapes just like cigarettes: people who become addicted to nicotine by vaping will ultimately end up smoking tobacco products. Whether—and to what extent—that is true, is quite debatable.
But for now, the salient point is that the government, driven by moral panic, consciously ignored meaningful and substantial differences between cigarettes and ENDS and decided to regulate them as if they were the same. Sound familiar?
The Justification Parallel: The Moral Panic of It All
Justifying a broad, heavy-handed regulatory approach is easier if one can convince people that there is an urgent, indisputable, and terrifying threat to our nation’s youth—and that it is definitively caused by the target of the regulation. A thoughtful legislative or regulatory approach would begin by making that case with a thorough and unimpeachable exposition of facts. Alas, lawmakers increasingly seem to have little time for such laborious enterprise, particularly when it stands in the way of being able to say that they “Did Something” for the cameras and constituents. And why would they go through all that trouble, when exaggeration, misrepresentation, and a generally loose adherence to facts makes the job so much easier?
And so we are told by any politician within 100 yards of a microphone that social media is literally killing kids. “We know for sure that the mental health crisis . . . has been aggravated and exacerbated by social media,” Senator Blumenthal conclusively declared. “[R]esearch has confirmed . . . social media usage is a cause for the mental health epidemic,” blared a press release from Senator Brian Schatz announcing a bill to limit youth access to social media. I could provide dozens more examples, but you get the message: social media is a massive, undeniable threat to kids’ mental health and their very lives—and we must act by any means necessary!
Similarly, we are told that there is presently a youth vaping “epidemic” ensnaring millions of children into a lifetime of nicotine addiction. If you believe what you hear, vapes are being advertised and sold to children indiscriminately, and you can’t walk down a school hallway without passing a kid vaping, or on their way to vape. And once kids start vaping, they just keep vaping more and more, unable to stop, to catastrophic ends. How could one not agree that action is necessary in the face of such horrors?
But reality paints a different picture. Whatever kernels of truth that might exist within these incendiary and catastrophizing claims have been exaggerated, misrepresented, and even fabricated—trading on fear and panic to make whatever government action has been proposed feel like an urgent and unassailable imperative.
True, we are experiencing a mental health crisis in this country—few would dispute this. But to claim that there is conclusive evidence, or anything approaching consensus, that social media is a significant cause of poor youth mental health outcomes is wild exaggeration at best, and willful dishonesty at worst. Some certainly do believe it is so: Social psychologist Jonathan Haidt, believes that there are enough correlational studies to make it “obvious” that social media is a cause of the youth mental health crisis. But many others have criticized the quality of those studies and Haidt’s representations of the data, pointing instead to different studies finding no evidence that social media causes psychological harm, or even that it is beneficial to youth. And other mental health experts, such as developmental psychologist Candice Odgers, argue that not only is there no evidence that social media is inherently harmful to mental health, but that stoking panic and fear about social media is harmful in its own right.
The relative merit of each position is not the point. The point is: we don’t know yet. The field of study is relatively young, and the issue is hotly debated amongst experts. But you wouldn’t know that from listening to legislators, who (despite not being experts in the field) have brazenly declared Scientific Consensus to short-circuit crucial questions about whether the problem they claim to be fixing is what they say it is—or even exists in the first place.
The vaping panic is something of a mirror image: we know vaping is not healthy for youth (and I know of no serious person who argues that teens should be vaping). But are the panicked, conclusory assertions of a youth vaping “epidemic” borne out in reality? Once again, it seems that legislators have been playing fast and loose with the facts to make their claims (and thus the necessity of their action) appear conclusive, established, and unquestionable—when in fact the data tells a less compelling story.
Opening the Judiciary Committee’s June 12 hearing on the youth vaping “epidemic,” Senator Dick Durbin attempted to lay the foundation by illustrating the “alarming” nature of youth vaping trends: “[2018] unleashed a wave of nicotine addiction … with more than 5 million teens reporting that they were using e-cigarettes.” Five million teens becoming addicted to nicotine in a year would alarm most anyone, and that is precisely the gut reaction Durbin was going for.
But to get that reaction, Durbin had to present even this basic, table-setting “fact” in a misleading way. It’s true that youth vaping rates peaked in 2018 and 2019. And the “five million” statistic indeed appeared in the 2019 National Youth Tobacco Survey results. But that figure was not the number of youths who engaged in frequent use, let alone frequent enough use to indicate addiction; it was the number of high school and middle school students who had tried an e-cigarette at least once in the past 30 days. While that statistic might be troubling in its own right, Durbin chose to exaggerate the data to make shocking, splashy insinuations about youth nicotine addiction. (Incidentally, a 2021 survey found that only 11% of 18-24 year-olds were vaping—a number you’d expect to be higher if those millions of teenagers had become addicted.) And if there was any doubt that Durbin was really conflating having tried an e-cigarette with being addicted to nicotine, it was put to rest only minutes later when he did it again: “[R]esearchers there estimate that 2.1 million children have picked up vaping since … September 2021 … 2.1 million new children addicted.”
And equally important as what legislators say is what they don’t say. Listening to lawmakers and regulators, you would think that the problem has only gotten worse. That’s because conspicuously absent from these performative exercises is any acknowledgement of data showing that youth vaping rates have been dropping dramatically:
In 2019, the year youth vaping rates peaked, 20% of middle and high school students reported recent (within the past 30 days) vaping: 27.5% of high school students and 10.5% of middle school students.
Of those students reporting recent use, 30.4% indicated that they vaped between 20-30 days out of the month (the 2019 survey did not collect data on the number of daily users).
The 2023 National Youth Tobacco survey found that 7.7% of students overall reported recent vaping: 10% of high school students and 4.6% of middle school students. Only 25% of those youth reported everyday use.
The 2024 numbers show a continuation of that downward trend: only 5.9% of high school and middle school students (7.8% and 3.5%, respectively) report vaping in the past 30 days, and nearly half of those students vaped 5 days or fewer (26.3% of recent vapers reported daily use).
Overall, approximately 3.3% of all middle and high school students have vaped more than a handful of times in the past 30 days, and only 1.55% of students reported vaping every day.
Even assuming that the rate of youth vaping in 2019 could be accurately described as an “epidemic,” the present-day hysterics simply cannot be squared with the staggering reduction in youth vaping borne out by actual data. And all the while, youth smoking rates have continued to plummet, down to less than 2% in 2023 (young adults sit at 10%)—casting significant doubt on the central claim that any nicotine product must be regulated to prevent eventual cigarette uptake.
And it becomes yet more difficult to take seriously the breathless assertions of an ongoing “epidemic” when one considers how comparatively little attention Congress seems to be paying to the rate at which youth are partaking in another addictive, dangerous-to-youth substance: alcohol. A 2022 survey found that 5.8 million youth age 12-20 (that’s 15.1%) drank alcohol in the past month, as compared to the 5% that used tobacco products. 3.2 million of those reported binge drinking at least once in the past month. Alcohol is known to interfere with adolescent brain development, and 4,000 people under the age of 21 die each year from excessive alcohol use.
It seems strange that we aren’t hearing about the “epidemic” of underage drinking. And despite both alcohol and nicotine being age-restricted products that retailers may not sell to youth, Congress doesn’t seem to be hauling the liquor industry in to explain how children are getting their hands on booze. That could be for several reasons. But I suspect one of them is that it’s simply old news. We’ve almost grown to accept that kids are going to experiment with alcohol, and the issue isn’t going to garner the same outrage and attention. Vaping, on the other hand, is a new, shiny, scary thing—and that’s the stuff moral panic headlines are made of.
Again, the point in all of this is not to say that there aren’t any problems, and that everything is perfect. Of course there are actual problems. Kids shouldn’t try e-cigarettes even once. And they should be safer online. But sound policymaking requires tailoring solutions to actual problems, not imagined or speculative ones. When politicians exaggerate, distort, provide incomplete facts, and play on our emotions to make their “solution” seem like the only reasonable thing to do, we ought to be skeptical and demand that they do careful, nuanced work instead of exploiting the moral panic shortcut to ram through broad, ill-considered policies that may do more harm than good.
The Tunnel Vision Parallel: Won’t Someone Please Think of the Adults?
Moral panics involving youth have the unfortunate tendency to erase adults from the equation. Their legitimate interests are at best ignored, if not outright denied and purposefully tossed out with the “save the children” bathwater.
It will (or should) not surprise you to learn that the vast majority of social media users are adults. One might hope, then, that legislators would consider the impact that their child online safety laws might have on adults and strive to minimize them. But then one would be sorely disappointed. Instead, they have decided to regulate the Internet for everyone, for kids.
In Congress and state legislatures across the country, countless bills have been introduced ostensibly aimed at protecting children online. Some would require platforms to obtain parental consent before a minor can use them, and some want to banish them from social media entirely. Others would impose liability on platforms for “causing” (or failing to prevent) harm to minors, whether from certain kinds of content or “addiction” to the platform itself. Still further, others would require platforms to shut off certain controversial content from any user who has not proven that they are an adult.
Of course, in order to treat minor users differently, platforms first have to know which users are minors; so these proposals effectively (and in some cases explicitly) require platforms to verify the age—and thus identity—of all users. In addition to creating a privacy and security nightmare for everyone, government-mandated age verification infringes on the First Amendment rights of adults to anonymously read and speak online. And that’s to say nothing of potential for mass removal (for everyone) of controversial content that platforms may decide is simply too risky to host at all. These harms to adults are well-known; they have been explained countless times over the years by courts and experts—who are curiously excluded from the lawmaking process. But rather than accounting for the interests and rights of adult Internet users, lawmakers introduce and push legislation that pretends they don’t exist. And when pressed on the issue, they blithely shrug it off, confident that the panic they’ve helped create will justify their disregard.
Perhaps the most obvious parallel in tobacco regulation is the War on Flavors. Multiple states and localities have banned any non-tobacco flavored e-cigarette products. And out of the fewer than 30 e-cigarette products that the FDA has deigned to approve for sale (a necessary step now that it regulates them as tobacco products) since 2016, zero have been flavored (at least until this July, when four menthol-flavored products were abruptly approved). And the recent congressional hearings make excruciatingly clear that a significant thrust of anti-vaping policy is to ensure that flavored products are not available for purchase.
Why? To hear lawmakers tell it, flavored e-cigarette products exist for sole purpose of attracting and addicting children. Senator Durbin said as much himself during June’s hearing: “The is zero evidence that e-cigarettes and their fruity flavors are targeted at adults. None. No evidence.” Later he listed several products and called them “clearly designed for kids by their flavors.” Over the course of the hearings, other senators and congressmen referred to anything other than tobacco-flavored products as “kid-friendly flavors” or “child flavors.”
Adults will surely be surprised to learn that anything flavored is obviously meant only for kids, and not them. Indeed, study after study after study has shown that the overwhelming majority of adult vapers prefer flavored products—and predominantly prefer those dessert and fruity flavors allegedly “designed for kids” at that (so much for “no evidence”). But acknowledging this fact would call for a more difficult, nuanced approach than simply banning all flavored e-cigarette products outright. So lawmakers, in their enduring willingness to make up whatever facts suit them, simply erase adults and their interests from the conversation.
One might reasonably argue that while adults do enjoy flavored products, data shows that they are attractive to youth. But we already have a relatively uncontroversial approach that allows adults to enjoy flavored things that children may not partake in. There are countless spirits and alcoholic beverages on the market with nearly identical flavoring, including—gasp—various fruits and even bubblegum and cotton candy! Nobody claims that these products have the sole purpose of attracting youth, and that we should ban them for everyone as a result. Instead, just like any other alcohol or tobacco product, we restrict the ability to purchase them to those over the age of 21 and hold accountable by law those who sell or provide them to minors.
If there is a reason why this approach is sufficient for alcohol—and even regular cigarettes—but not e-cigarettes, it is certainly not apparent. What is apparent is that lawmakers and regulators are all too willing to sacrifice the legitimate interests of adults on the altar of “something must be done.”
The “Do More Harm” Parallel
The blinders of moral panic have yet another, related unfortunate consequence: obstructing harm reduction for everyone in the quixotic hope of preventing all harm to youth.
Because the FDA deemed e-cigarettes to be “tobacco products,” all manufacturers of e-cigarettes or e-liquids (which are used to refill vapes) must now submit a Premarket Tobacco Product Application (PMTA) to the FDA and receive authorization before they can legally sell their products—or update them with new components or flavors. In order to be approved, companies must prove that their product is “appropriate for the protection of public health.”
One would think that reduction of combustible tobacco use is an obvious step forward in the protection of public health. Vaping is significantly less harmful than smoking. We know this. Science knows this. Even the FDA knows this. And we also know that e-cigarettes are an effective off-ramp for cigarette smokers—even more effective than other nicotine replacement therapies (such as gum or patches) according to some studies.
But the FDA has been reluctant to see it as such. While the agency has grudgingly admitted that vaping is lower on the continuum of risk, it has refused to acknowledge the usefulness of e-cigarettes in smoking cessation. Unlike the many countries that view vaping as a useful tool in the fight against tobacco-related disease and death, the United States has pursued a path of nonsensical antagonism that treats e-cigarettes as part of the problem.
Why? Because politicians and regulators cling to the fiction that we can regulate all harms to minors out of existence and will subordinate all other policy and public health priorities—regardless of cost-benefit analysis—to its pursuit. And they are very open about it: former FDA Commissioner Scott Gottlieb admitted that reducing harm to adult smokers takes a backseat to the fanciful “mandate…that no child should be using a tobacco product” (as if anyone in the history of…ever…has figured out a way to make kids stop doing things that they shouldn’t).
As a result, Americans have limited access to lower risk, life-saving products. Since 2016, the FDA has approved fewer than 30 e-cigarette PMTAs—out of millions of applications. And even when it has approved applications, it has been after a wait of several years (despite the 180-day statutory deadline for making such decisions). This fact becomes even more appalling and unfathomable when compared with the number of deadly combustible tobacco products approved for sale since 2009: 16,000.
If policymakers thought that people would simply decide to give up nicotine altogether if safer alternatives are unavailable, they seriously misunderstood human behavior. Instead, reduced access to safer, life-preserving alternatives has the entirely predictable result of pushing people back to cigarettes. One study found that for each fewer 0.7ml nicotine pod sold due to e-cigarette flavor bans, sales data indicates that 15 more cigarettes are sold. And it turns out that flavor bans may actually have a similar effect on youth—the very demographic policymakers seemed single-mindedly concerned with. A 2021 study on San Francisco’s flavored tobacco ban showed that youth cigarette smoking rates doubled after the restrictions were put in place. And that’s just the effect of restricting flavors.
But Congress—exhibiting all the self-awareness of a seedless watermelon—has decided that the problem is actually the FDA’s insufficient efforts to stop the sale of unauthorized vaping products. In the recent congressional hearings, lawmaker after lawmaker lambasted the agency for “allowing” unapproved products to fill store shelves. Blown-up pictures of flavored vapes offered for sale were displayed. Teeth were gnashed about the hazards posed by unregulated products, especially from China, with unknown ingredients and quality. And all the while, scant few appeared to realize that the proliferation of these products is driven largely by agency reluctance to approve (and widespread legislative antagonism towards approving) products from rule-abiding companies who are trying to jump through the regulatory hoops in the first place. And even when products are approved, the excessive wait time for FDA approval every time a component in a product is changed means that technology making vaping safer can take years to reach consumers—to the detriment of public health. (Incidentally, the Supreme Court will soon consider whether the FDA has acted arbitrarily and capriciously in its treatment of marketing applications for flavored vaping products—more on that at a later date).
Put simply: shortsighted and narrow-minded tobacco control policy is actively pushing people to engage in more risky and harmful behavior—whether cigarettes or black-market products. And that policy especially harms marginalized and disadvantaged groups, which have higher smoking rates and according to the CDC “bear a disproportionate burden of tobacco-related health consequences.”
Proponents of online child-safety legislation seem hell-bent on repeating these mistakes. The Internet, much like the rest of the world, cannot be made perfectly safe for children (or adults, for that matter)—and attempting to legislate as if that was a realistic possibility threatens to do much more harm than good.
Take, for example, legislation that requires social media platforms to prevent or mitigate mental health harms to minor users, particularly with respect to issues like depression, suicide, and eating disorders. Legislators appear to believe that platforms can simply “nerd harder” and figure out how to prevent minors from accessing any content that might exacerbate these issues. Of course, that is nonsense from the outset: mental health impacts vary between individuals, who experience and interact with content differently—there is no way to simultaneously protect the mental health of all minors. Indeed, because the obvious, most risk-averse response to such a mandate is to block minors from viewing any content that might conceivably relate to such topics, minors will likely be cut off from content that is expressly aimed at providing support and steering kids away from self-harming behaviors.
And for what? Studies have indicated that attempts to block such content have been relatively easy to evade, and in some cases may actually make it easier to find harmful content. At best, the content becomes more covert, and therefore harder to combat. At worst, even if the platforms are moderately successful, minors—not so easily dissuaded from finding the content they want—are likely to be pushed to much darker corners of the Internet: websites not reached by regulation that are not only far less moderated, but in some cases actually created for the purpose of encouraging self-harm.
As just one other example, consider the various bills that would forbid platforms from using the personal data of minors to recommend content. That might seem like a reasonable, privacy-protective measure at first glance. But consider that a user’s age is considered personal data. Sites like YouTube have algorithms that, while necessarily imperfect, attempt to curate age-appropriate content for users. But under these legislative proposals, they would be unable to do so—leaving young users to navigate the firehose of all content without any help.
And these proposals, just like tobacco control, threaten to have a disparate impact on disadvantaged and marginalized communities. Most obviously, requiring social media platforms to protect against mental health harms is an invitation for government actors to tie any content they don’t like to negative mental health outcomes, and force platforms to cut off access for minors. And the first target will be LGBT+ content, cutting youth off from resources and community that can literally save kids from depression, self-harm, and suicide. Senator Marsha Blackburn—one of the authors of the Kids Online Safety Act—gave up the game on that one when she said the quiet part out loud: that protecting kids from “the transgender in our culture” and “indoctrination” on social media were top priorities.
Perhaps less intentionally, but equally thoughtlessly, proposals to require parental consent before a minor can use social media have their own disparate impact. Minors in disadvantages households, whose parents work multiple jobs and simply do not have the time, may be cut off from valuable online experiences. Worse yet, children in abusive households, whose parents might even intentionally seek to isolate them, will be precluded from a significant avenue for support and resources—and perhaps maybe even from the knowledge that what they are suffering is abuse in the first place.
We live in an increasingly complicated world. So when policymakers present problems as clear and their solutions as obvious, red flags go up. Complex problems require careful thought and nuanced solutions. But the conceit of moral panic is that doing something is equivalent to doing something good. Time and again, this has proven at best ineffective, and at worst catastrophically harmful. One would hope that our elected officials, who claim to act in our best interests, would have the motivation to learn from past mistakes and not succumb to the temptation of substituting what is easy for what is good.
Alas, maybe next time.