Influenced into Addiction: Using the Multi-District Litigation Against Opioid Companies as a Framework for Social Media Companies.

• Author: Thompson, Ileana
• Date: 01 January 2024

TABLE OF CONTENTS
                I. INTRODUCTION 39
                II. SOCIAL MEDIA ADDICTION AND THE EXISTING REGULATIONS 41
                A. Social Media Addiction Explained 41
                B. Current Regulatory Limits on Social Media Companies 45
                C. Exploring Other Attempts to Impose Regulations on Social Media
                Platforms 46
                III. THE HISTORY OF LITIGATION AGAINST OPIOID COMPANIES 48
                A. Opioid Addiction Explained 48
                B. Explaining How the Existing Regulations and Policy Standstill
                Led to Opioid Mass Tort Litigation 49
                C. How Civil Litigation Played Out Against Opioid Manufacturers
                and Retailers 50
                D. New Policies Since the Litigation Commenced 53
                IV. ANALYSIS 54
                A. The Similar Addictive Effects of Opioid Addiction and Social
                Media Addiction Provide Some Support for Potential Future
                Litigation 55
                B. The Role that Social Media Companies Play in the Rates of Social
                Media Addiction Resembles the Role Opioid Manufacturers
                Played in the Opioid Addiction Crisis 56
                C. Current Regulations for Social Media Companies Incentivize the
                Use of Litigation to Advance Regulatory and Policy Goals 57
                D. Using the Post-Opioid Settlement Policies to Avoid Mass Tort
                Litigation Based on Prior Authorization and Prescription
                Monitoring Policies 58
                V. CONCLUSION 58
                

I. INTRODUCTION

As you leisurely scroll through your favorite social networking site, you probably notice that your colleague is on vacation or that there is a new trending TikTok dance. You may even wonder if your device is listening to you after an advertisement for blenders pops up on your phone shortly after a conversation with your partner about needing a new one. Regardless of the type of content that dominates your preferred social networking site's timeline, social media use is likely a common activity for you or someone you know. This is even more likely to be true after the world was abruptly forced into isolation during the COVID-19 pandemic.

During and following the COVID-19 pandemic, social media use increased for everyone, with some of the most significant increases seen in 18 to 24-year-olds. (1) Since 2020, people increasingly depend on social media and other digital platforms for social interaction, news and other journalism coverage, information (and misinformation), and even education on current social movements. Today, access to social networking sites runs parallel with access to information irrespective of time and geographic limitations. But increased access to social networking sites does not mean that people will make the best choices for themselves mentally, emotionally, or physically.

The term "social media addiction" refers to a behavioral addiction that is "characterized as being overly concerned about social media, driven by an uncontrollable urge to log on or use social media, and devoting so much time and effort to social media that it impairs other important life areas." (2) Its effects on the individual present similar behavioral challenges as opioid addiction. (3) In fact, social media companies play a very similar, intentional role in encouraging their users' habitual and excessive scrolling as opioid manufacturers played in their consumers' maladaptive use and abuse of opioid drugs. (4) Biologically, similar dopamine-driven reward models, which play a key role in substance addiction, are implemented in the algorithms of social media companies, like Instagram and Facebook, to encourage users to continue using their products. (5) Social media companies also enjoy similar market structures as opioid manufacturers and retailers, meaning that they may not escape liability by asserting a third party's conduct absolves them. Finally, liberal regulatory regimes under which social media companies currently operate, and under which opioid manufacturers and retailers previously operated, provide another similarity between the two.

The similarities between social media addiction and opioid addiction, the respective roles of social media companies and opioid manufacturers in their respective addiction rates, and the current regulatory regime governing social media companies will be discussed to support the overall thesis that social media companies may face similar multi-district litigation as opioid manufacturers and retailers. This Note will use mass tort litigation pursued against opioid manufacturers and retailers as a framework for hypothesizing the litigation strategy and the likelihood of success in potential litigation against social media companies.

Section I of this Note provides some background information on what social media addiction is, its growing prevalence, and how the failure to implement additional regulations for social media companies and social media use provides no incentives for social media companies to self-regulate. The lack of self-regulation, the similarities in market structures, and the effects on the individual's brain and behavior will be used to draw similarities to opioid manufacturers and distributors prior to the commencement of mass tort litigation against opioid manufacturing and retail companies in 2017. (6) Section II of this Note provides similar background information as Section I, but instead offers the information in the context of opioid manufacturers and retailers. It will explain what opioid addiction is, how policy and regulatory failures resulted in opioid manufacturers and retailers contributing to the opioid addiction crisis, and it will highlight key aspects of the multi-district litigation against several of the largest opioid manufacturers and retailers. Section III proposes that social media companies may face similar multi-district mass tort litigation as opioid manufacturers and retailers by analyzing the similarities between social media addiction and opioid addiction and the respective market strategy of social media companies and opioid manufacturers in their respective addiction rates. Finally, this Note will offer self-regulating steps that social media companies can implement to avoid future mass tort litigation.

II. SOCIAL MEDIA ADDICTION AND THE EXISTING REGULATIONS

Social media addiction is characterized by the compulsive use of social media. (7) Social media companies contribute to social media addiction by way of their algorithms, which are designed to predict which content will maintain a user's engagement, and thus, encourage the use of their products for extended periods of time. (8) Currently, sufficient incentives or regulations do not exist to encourage social media companies to change their practices in a manner that would prohibit or diminish the threat of social media addiction. (9) The background information presented in this section will be used to understand how social media companies are similarly situated to opioid manufacturers and retailers prior to the commencement of the mass tort litigation in which they were involved.

A. Social Media Addiction Explained

The self-perceived need to be "alone together," always connected via social media but in fact isolated, has given rise to research on technology-mediated and online behaviors by media scholars and psychologists. (10) Social media refers to interactive websites or Internet applications (apps) that allow users to generate and share content with others, create personalized profiles, and develop online social networks. (11) Today, there are over 3.8 billion social media users. (12) Studies show social media use is correlated with increased levels of anxiety, depression, loneliness, and other negative mental health outcomes associated with "salience, mood modification, tolerance, withdrawal, relapse, and conflict with regards to behavioral addictions." (13) Overuse of social media is associated with low work performance, less healthy social relationships, sleep problems, low life satisfaction, and feelings of jealousy, anxiety, and depression. (14)

Addiction is defined as "an inability to stop using a substance or engaging in a behavior even though it may cause psychological or physical harm." (15) While typical understandings of addiction are usually associated with a substance, as is the case with opioid addiction, clinically, "addiction results from the relationship between a person and the object of their addiction." (16) As such, social media addiction is characterized by the compulsive use of social media. For the purposes of this Note, the term "social media addiction" will be used to describe "being overly concerned with social media, driven by an uncontrollable urge to use social media, and devoting so much time and effort to social media that it impairs other important life areas." (17)

Among the 3.8 billion users, social media use in as many as five to ten percent of Americans meets the criteria for social media addiction. (18) This presents a growing concern for younger individuals' excessive use of social media and the Internet. Research already suggests younger generations may be at a heightened risk for developing addictive symptoms because of their excessive engagement with online social networking platforms. (19) So when does social media use become problematic? Although there are no established clinical classification criteria for excessive social media use or social media addiction, studies show that adolescents who spend more than three hours per day using social media may be at heightened risk for mental health problems. (20)

Chamath Palihapitiya, the former Vice President of User Growth at Meta (formerly Facebook) explained how "the short-term, dopamine-driven feedback loops... are destroying how society works" and are turning us into bona fide addicts by leveraging "the very same neural circuitry used by slot machines and cocaine to keep us using the product[s] as much as possible." (21) According to a new study by Harvard University, self-disclosure on social networking sites lights up the same part of the brain that ignites when taking an addictive substance:

The reward area in the brain and its chemical messenger pathways affect
                decisions and

...