State attorneys general ask Congress to undermine their state hemp laws 

A coalition of attorneys general (AGs) from 39 states and territories sent a letter to Congress on Oct. 24 demanding a federal crackdown on the sale of psychoactive hemp products. In doing so, they are asking the federal government to override the democratic decisions of their own state legislatures, making a mockery of state sovereignty and their own duty to uphold state law.  

The AGs argue that the 2018 federal Farm Bill, which legalized hemp with low levels of tetrahydrocannabinol (THC), unleashed a flood of intoxicating hemp products across state lines. Their proposed solution is for Congress to impose a nationwide prohibition. The irony is that nearly all of these AGs represent states that have already enacted laws governing these products, ranging from outright bans to treating them like alcohol or folding them into their existing frameworks for legal cannabis. Their request for a federal ban is a direct repudiation of the work done by their own democratically elected legislatures.  

This dynamic is perfectly illustrated by Minnesota Attorney General Keith Ellison. His state has regulated intoxicating hemp edibles and beverages since 2022—a year before establishing the state’s adult-use cannabis market—recently imposing new rules on hemp product testing. After facing backlash for signing a letter asking Congress to recriminalize products made legal under Minnesota law, his office clarified that he actually favors a carve-out for those states with “adequate regulatory schemes in place.” That nuance, absent from the AGs’ letter itself, only highlights the contradiction that these chief legal officers, sworn to uphold the laws of their states, are demanding a federal policy that would nullify them.  

Constitutionally, the framework for this issue is clear. Under the long-standing interpretation of the “Commerce Clause,” states retain the authority to regulate or ban any class of product they deem threatening to public health or safety, provided their laws do not discriminate against out-of-state producers. Congress does not interfere with this state-level power by authorizing interstate hemp commerce. However, it is up to states to implement their own rules. If attorneys general are concerned that their state laws are being violated, the responsibility of enforcement rests with them, not Congress.  

It is not surprising that attorneys general are struggling to enforce state-level restrictions on hemp. However, their frustration is the inevitable consequence of adopting overly restrictive and unenforceable regulatory regimes, rather than a loophole in federal law. As governments have learned repeatedly throughout history, prohibition—and even heavy-handed regulation—does not eliminate demand but pushes it toward unregulated alternatives. This is a lesson these officials should understand firsthand from their own states’ experiences regulating cannabis markets.  

It is therefore shocking that some of the signatories represent states like Arizona, California, and Colorado, which regulate hemp cannabinoid products under the same strict rules governing their legal marijuana markets. This raises the question of what these signatories believe a federal ban would accomplish, other than dismantling their own functional regulatory systems and handing the market back to illicit actors. 

Other states are pioneering more innovative models for hemp regulation that could effectively address the AGs’ concerns, if given time. Kentucky, a leading hemp producer, has created a sophisticated dual-track system for regulating hemp-derived products based on their potential to cause intoxication. The Kentucky Department of Public Health maintains an evolving list of cannabinoids categorized as “intoxicating” or “nonintoxicating.” Intoxicating products can be sold outside of the state’s medical marijuana dispensaries but are subject to strict manufacturing and quality controls, with a pathway for out-of-state products to enter Kentucky’s market legally. This approach fosters a compliant market capable of meeting consumer demand, demonstrating that there are many paths to ensuring public safety around adult products.  

The outcome of these state-level approaches is still unfolding. But building an effective regulatory regime that can balance public safety and market realities takes time and experimentation. What is certain is that granting the AGs’ request would bring this regulatory innovation to a screeching halt, preventing state legislatures from developing the very solutions needed to resolve the enforcement problems currently causing frustration.  

A federal hemp ban will prove no more successful than state-level prohibitions because neither eliminates demand. Just as overtaxed and overregulated marijuana markets once drove consumers to hemp, a federal hemp ban will only push them toward more harmful alternatives or back to illicit marijuana.  

The most effective solution to the problem of unregulated hemp products is a workable regulatory framework that businesses can comply with and that consumers will accept. State regimes that give adult consumers access to a variety of legal and reasonably priced state-authorized products would do far more to eliminate unregulated products than any ban. Fortunately, this work is already well underway in many states. Their attorneys general should support that effort rather than asking Congress to interfere.  

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