What’s old is new again. The beginning of the year has brought us a sense of renewal, and taking a cue from Congress, we are revisiting some issues in a new light. Congress recently dusted off a bill that failed to pass in its previous forms for various reasons, including concerns about the bill’s constitutionality. We have written before about cannabis regulations bumping up against constitutional protections. This time, we’re tackling the free speech issue in the context of a federal bill with good intentions but potentially massive practical implications.
Certain members of Congress are seeking again to pass a version of the Kids Online Safety Act (KOSA). That bill was originally proposed in 2022 by a bipartisan coalition of senators. Over the past few years, it has been reintroduced in various forms in both the Senate and the House, but never quite gained enough traction to pass in both chambers. Recently, new parallel (but not identical) versions of KOSA were introduced in the U.S. House of Representatives and Senate. The House version was marked up by the House Subcommittee on Commerce, Manufacturing, and Trade, and the Senate version was introduced as an amendment.
If we were to anthropomorphize a Congressional bill (we’ve certainly done worse on this blog), we would imagine KOSA is starting to feel a lot like Katherine Heigl in 27 Dresses right about now — always at the altar, never quite the bride (at least until James Marsden shows up).
It’s not a stretch to say a 4-year-old can access an iPad as readily as we can, meaning the internet is at her fingertips – both the good (looking at you, K Pop fans) and the bad. And that’s to say nothing of the access teens have. I think we can all agree that protecting kids from dangerous and harmful online content is generally a good thing and a great goal to strive for. I could get on my soapbox to say it’s a goal we all have to strive for. How we do that is a more complicated question. When Congress seeks to step in and drafts legislation to achieve that goal, it can face constitutional issues.
Enter KOSA. The House’s updated version of the bill includes language prohibiting websites, social media platforms, and other internet-connected services from “facilitate[ing] the advertising of . . . cannabis products . . . to an individual that” it “knows is a minor.”
Link to Refresher on Commercial Speech Protections Refresher on Commercial Speech Protections
As we have said before, the First Amendment protects most (but not all) speech. We don’t claim to be law professors (unlike other Budding Trends authors), so we’ll avoid boring you with too much First Amendment jurisprudence. But it’s important to hit the high points (bad pun intended). The First Amendment makes it illegal for the government (at federal, state, and local levels) to pass a law limiting speech (in most cases).
“Commercial speech” is explicitly protected under the First Amendment albeit subject to some limitations. In 1980, the U.S. Supreme Court defined commercial speech to include any kind of “expression related solely to the economic interests of the speaker and its audience” that “propos[es] a commercial transaction.” Think advertising, marketing, product labeling, etc.
While the government is allowed to regulate commercial speech more strictly than other kinds of speech, there are limits to those regulations. The threshold questions when regulating commercial speech are: (1) is the speech related to unlawful activity, and (2) is the speech fraudulent or misleading? If the answer to either is “yes,” then the government can ban that speech. For example, the Tiger King can’t offer an endangered Bengal tiger cub for sale, claiming it’s a housecat. That would be both illegal and misleading.
If a law tries to regulate speech that is legal and not misleading, then the government must show that (1) it has a substantial interest in regulating that speech, (2) that the regulation directly and materially advances that substantial interest, and (3) that the regulation is narrowly tailored.
If the law can pass all of those tests, then it is upheld. If not, it gets struck down.
Link to How Does KOSA Fit? How Does KOSA Fit?
KOSA’s language effectively bans internet-connected services from allowing cannabis product ads to reach anyone that it knows is a minor.
As of right now, we think the bill’s language would be upheld as it relates to marijuana under the same rationale the Fifth Circuit provided in Cocroft v. Graham, 122 F.4th 176 (5th Cir. 2024), cert. denied, 145 S. Ct. 2682 (2025).As long as marijuana remains illegal by virtue of federal law (because it is a Schedule I drug), any marijuana advertisements remain unprotected by the First Amendment. Under that reasoning, Congress could validly ban all online marijuana advertising to all age groups since selling marijuana remains federally illegal. And although the (imminent?) rescheduling of marijuana could change this, we reiterate that at least as of the time we’re publishing this blog, marijuana is still a Schedule I drug under the Controlled Substances Act.
If marijuana is rescheduled, however, KOSA would very likely face constitutional challenges. We won’t dive too deeply into this “what if” scenario, but we think KOSA will face serious hurdles if marijuana is a Schedule III drug. In that case, the government would face a serious hurdle in showing that the effective ban on advertisements of legal drugs is narrowly tailored, especially when other drugs and devices overseen by the FDA do not face the same kinds of bans.
That isn’t the end of the story, though. KOSA’s use of the term “cannabis products” is broad enough to regulate ads for — at least as of right now — federally legal hemp and hemp products, too. (Although avid Budding Trends readers will remember that Congress’s efforts to “close the loophole” on some of those products may mean they are also illegal beginning November 2026).
The bill’s language could lead to severe restrictions on these federally legal products, including innocuous products such as hemp-based concrete and building supplies, bioplastics, hemp-based clothing and fibers, and hemp lotions and creams. We have serious concerns about whether this could amount to a practical ban on cannabis advertising online. Will internet services and social media companies be willing to shoulder the massive cost and burden of ensuring that they know the age of their users and then age gate specific types of advertising? That’s a heavy lift, even for some of the big names in the business. The simple solution for these providers and companies may very well be to avoid cannabis advertising altogether.
We wonder how a court might view such a broad ban, especially contrasted against more limited advertising bans such as the cigarette ad bans enacted in the 1960s. Congress may have had a rational basis for banning cigarette advertising because they are universally understood to be detrimental to people’s health. But a statute that effectively bans federally legal hemp businesses from advertising legal products with no known health risks is far more likely to be found unconstitutional. It seems unlikely to us that a business selling building supplies, textiles, or lotion can validly be banned from truthfully advertising its products online simply because its products are derived from hemp.
The bill’s First Amendment carveout provision likely would not save it in its current form. That provision states that:
Nothing in this section may be construed to allow a government entity to enforce subsection (a) based upon the viewpoint of users expressed by or through any speech, expression, or information protected by the First Amendment to the Constitution of the United States.
In our view, that provision merely bars the government from taking an enforcement action based on the viewpoints of users of an internet-connected service. A court would have to read the term “user” to also include the companies advertising their products, which would seriously stretch the definition of that term in KOSA (“‘user’ means, with respect to a covered platform, an individual who registers an account or creates a profile on the covered platform”), especially since KOSA largely uses the terms “user” and “visitor” interchangeably. Congress likely only intended for the carveout to allow for user-generated content that expresses certain views about things like cannabis products to fall outside the scope of KOSA. Unless the First Amendment carveout language were stretched to its limits, it is unlikely to be sufficient to save KOSA’s broad prohibitory language.
Link to So Where Do the Kids Go from Here? So Where Do the Kids Go from Here?
Although KOSA’s goals are laudable, we think there are strong arguments that the means it uses are unconstitutional. And, if marijuana is rescheduled, the bill’s language would be all the more problematic. Don’t get us wrong — protecting minors from dangerous and harmful online content is absolutely necessary. But if Congress wants to do so through KOSA, we think it needs to make some amendments before the bill is ready to withstand a constitutional challenge.