Conceding their lobbying arguments are inconsistent with those in court, state prosecutors have given up in their bid to regulate how products with marijuana are labeled.
On one hand, Maricopa County Attorney Bill Montgomery is asking the state Court of Appeals to void the Arizona's medical marijuana law. He contends that voters had no right in 2010 to set up a system to regulate who can use marijuana because the drug remains illegal under federal law.
And in a separate appellate case, prosecutors want the Arizona Supreme Court to overrule a trial judge's order requiring the Yuma County Sheriff's Department to give back marijuana which had been seized from a woman who was entitled to possess it under that 2010 law. Here, too, the argument is federal preemption of any state regulation.
Yet the Arizona Prosecuting Attorneys Advisory Council has been asking state lawmakers to, in essence, regulate the sale of marijuana. They sought to spell out exactly how products with marijuana have to be packaged.
So rather than face the chance their own lobbying efforts at the Capitol might be used against them in court, the prosecutors are surrendering on the labeling issue.
Sen. Kimberly Yee, R-Phoenix, who was sponsoring SB 1440, said Monday she will not pursue the issue now that prosecutors have withdrawn their support. Yee said lawmakers need to wait until both court cases are resolved before going any farther.
Arizona's medical marijuana law permits those with a doctor's recommendation and state-issued permit to obtain up to 2 1/2 ounces of marijuana every two weeks.
But the law does not require that be in a form that can be smoked. That has led to some dispensaries offering the drug in the form of lollipops, drinks and brownies.
Yee said her fear is that a child, finding these items, might see them as candy rather than medication. Her legislation, crafted by the prosecuting attorneys, would have required any product with medical marijuana to be in a white opaque wrapper, with any labeling only in black text and on a white background.
Kim MacEachern, lobbyist for the prosecutors' council, said that made sense -- up to a point.
She pointed out that Yavapai County Attorney Sheila Polk, in preparing a brief for one of the appellate court cases, argued that it is the federal government alone that gets to decide if marijuana is a legitimate drug, not the voters of Arizona and other states that have enacted similar laws. Polk, who chairs the prosecutors' council, said this point that decision is that marijuana has no legitimate purpose.
More directly related to SB 1440, MacEachern said that if marijuana is a drug, then only the Food and Drug Administration gets to decide how it has to be packaged and labeled.
So the prosecutors decided that they should not be asking lawmakers to regulate labeling while asking judges to conclude the state has no legitimate role.
"Perhaps this legislation is premature,'' MacEachern said Monday. "We need to let the cases play out to find out what the court's view of the parameters of the (medical marijuana) act is and how it fits in with the federal scheme before we can really craft anything that makes sense at the state level.''
The preemption argument being advanced by Montgomery involves a dispute over whether county officials are required to certify that a certain location is properly zoned for a marijuana dispensary. Montgomery contends that puts county employees in the position of aiding in the violation of the federal Controlled Substances Act.
But Montgomery is not stopping there. He eventually wants a ruling which says the entire 2010 law is preempted by federal law.
A trial judge rejected that argument. Another round of legal briefs at the appellate level are due in that case next month.
Legal arguments are not that far along in the case before the Supreme Court.
That case involves Valerie Okun, a California resident who was stopped by Border Patrol just inside the Arizona state line. When officers found drugs on her they turned the case over to local officials who declined to prosecute because Okun is a medical marijuana cardholder in California and Arizona law recognizes such authorization.
But deputies rejected Okun's bid for return of her drugs, arguing that the federal laws banning possession and distribution of marijuana preclude them from returning the marijuana.
That contention was rejected by both a trial judge and the state Court of Appeals.