Vicente LLP · Client explainer

States, hemp and the dormant Commerce Clause

Why Ohio's hemp law ran into trouble, and why Missouri's case is different.

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A client explainer · As of October 26, 2026

States, hemp & the dormant Commerce Clause.

HEMP
1 · THE DORMANT COMMERCE CLAUSE RULE
2 · OHIO
3 · MISSOURI
General education, not legal advice. Law and court filings as of Oct. 26, 2026.
Part 1

The dormant Commerce Clause.

The Dormant Commerce Clause

Congress regulates commerce among the statesU.S. Constitution, Art. I, § 8

Courts read in a limit on the states

Central concern: economic protectionism

IN-STATE SHOP
OUT-OF-STATE FARM
GOODS
STATE LINE
GOODS
Protectionism

Anti-discrimination: “the very core” of the doctrine.

National Pork Producers Council v. Ross · U.S. Supreme Court, 2023
Two tracks.
DISCRIMINATES

On its face · in purpose · in practical effect

IN-STATEGOODS ONLYOn its face
In its purpose
In practical effect
VIRTUALLY PER SE INVALID
To survive, the state must showA legitimate local purpose that can't adequately be served by reasonable nondiscriminatory alternatives.
Hard to meet
EVENHANDED

Same rule for in-state and out-of-state interests · much harder to challenge

The challenger must first showA substantial burden on interstate commerce. If so: is it clearly excessive in relation to the putative local benefits?
Out-of-state costs ≠ discriminationHigher costs borne by out-of-state businesses, without more, don't establish discrimination
Two wrinkles for cannabis.
1 · Congress can say yesStates may discriminate, but only with Congress's permission.
Unmistakably clearcourts require it
2 · MARIJUANA: COURTS DISAGREE
1st CircuitApplies it
2d CircuitApplies it
9th CircuitDeclines
Supreme CourtNot resolved
HempHemp products that meet the federal definition of hemp are excluded from the federal definition of marijuana, so the split usually doesn't come up.Federal law
Still regulatedOther federal and state rules still apply
Two federal dates.
NOVEMBER
12

Cannabinoids the plant can't naturally produce: not hemp

DECEMBER
11

The broader changes

0.4 mgper container, final products: combined THC (incl. THCA) and similar-acting cannabinoids. Above it: not hemp.
Also excluded from Dec. 11Cannabinoids synthesized outside the plant.
Losing hemp status ≠ every question answeredThe marijuana split may become relevant
Federal law · Pub. L. 119-37 § 781, as delayed by Pub. L. 119-103 § 2019
Part 2

The Ohio litigation.

What Ohio did.
MARCH
20

Senate Bill 56 takes effect, 2026

Intoxicating hemp → the marijuana systemSold only through licensed businesses.
Rule C · rescinded eff. Oct. 29, 2026A dispensary couldn't obtain product from a location outside Ohio.State rule
Division of Cannabis Control's chief counselLicensed facilities must be in Ohio.Court record
OHIO
OUT-OF-STATE

Market limited to companies that source, make and distribute in Ohio.

A federal judge, describing Ohio law
What the courts said.
JUL–SEP 2026 · PRELIMINARY INJUNCTIONS
Sept. 25 · Sixth CircuitRuled on Ohio's request to stay the injunction pending appeal.Court order
StayedThe broader injunction
Left in placeNarrow relief against in-state sourcing and production rules

Requiring upstream operations in state is “a familiar violation” of the dormant Commerce Clause.

Sixth Circuit, Sept. 25, 2026

“Stringency and provenance are different things.”

Rejecting Ohio's federal-hemp-law argument
Preliminarynot a final decision
Only the plaintiffsNeutral licensing, testing and labeling rules still apply
Since thenRule C rescinded, effective Oct. 29, 2026 · Argued Oct. 22 · No decision as of Oct. 26
Why Ohio fared differently.
SAME RULE, WHEREVER MADE

In the cases we've reviewed, courts have generally declined to block these limits.

“That is not discrimination.”

Fourth Circuit, on Virginia's THC limit · appeal over a preliminary injunction
OHIO

Market access tied to where a company's operations are.

OHIO
OHIO-MADE
OUT-OF-STATE
Not how strict
Wherethe operations are
Part 3

The Missouri challenge.

Missouri's law.
House Bill 2641Covered hemp-derived cannabinoid products “shall be considered marijuana.”Statute
GROW · MAKE · TEST · MOVE · SELL
Only Missouri's licensed marijuana businesses
Missouri Constitution · Article XIV
  • Marijuana: cultivated in Missouri
  • Infused products: manufactured in Missouri
Constitution
The lawsuitJuly 2026: a Missouri hemp trade association and two hemp companies sue in federal court. October: they ask the court to block the law under the dormant Commerce Clause.
Missouri: two groups, two timelines
GROUP 1
NOVEMBER 12
Synthesized or non-natural
Smokable flower, any THCA
Edibles with added delta-9
GROUP 2
DECEMBER 11
Tracks federal law
Beverages, natural cannabinoids
No sales under 21 meanwhile
Here’s the catch.
Sworn state declaration
NOVEMBER 12
DECEMBER 11
Cannabinoids the plant can’t make at all · Missouri Nov. 12 · federal Nov. 12 · they line up
Lab-made versions of natural cannabinoids · Missouri Nov. 12 · federal Dec. 11
Depends on the products · described only generally so far
OHIO

Expressly barred out-of-state sourcing

MISSOURI

A more complicated question

1Which products are covered?
2When do the restrictions apply?
3Can these companies challenge them?
4Does the clause protect that commerce?

Its in-state growing rule “would violate” the clause “if applied in most marketplaces.”

Missouri's concession, Oct. 23, 2026 brief
Missouri's defensesNo standing · The rule comes from the constitution, not HB 2641 · Doesn't reach federally lawful hemp · The clause doesn't protect prohibited commerce
STATES CAN REGULATE HEMP STRICTLY
BUT NOT TO SHIELD IN-STATE BUSINESS
OHIO · IN-STATE SOURCING + PRODUCTION
MISSOURI · CATEGORIES, TIMING, FEDERAL LAW
DEC 11 · THE QUESTIONS MAY SHIFT
The bottom line

Regulating what can be sold is one thing. Dictating where lawful products come from is another.

General education, not legal advice. Law and court filings as of Oct. 26, 2026.
Missouri: what to watch
  • Rulings on the request to block the law and the motion to dismiss
  • Which products are at issue
  • Dec. 11, and whether Congress moves it
No ruling as of our Oct. 26 check
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General education, not legal advice. Law and court filings as of October 26, 2026. Narration by an ElevenLabs stock voice (River); paper sounds and the music bed are generated in the page. Space plays or pauses, the arrow keys move between slides, C turns captions on or off, and F goes full screen.