Tobly McSmith has had his kava bar Here & Now shuttered by inspectors from the Department of Health and Mental Hygiene twice in the year and a half since it first opened on Allen and Bowery. “We’ve been scared of everybody who walks in,” McSmith says. In addition to pour-over coffee and espresso and pots of tea, McSmith sells kava and kratom teas that his employees brew themselves, both plant-derived substances that his clientele consider natural options for anxiety and pain relief and the health agency deems “poisonous,” “injurious to health,” and “unsafe.” This difference has led to the bureaucratic tug of war plaguing his business — from DOH violations for selling kava to a cease-and-desist letter to closure orders, two hearings, a trial, and a denial of his application to renew his food service establishment permit. He’s not alone — the city’s other kava bar owners are by now very familiar with the bright yellow signage announcing a shutdown: “Closed by order of the Commissions of Health and Mental Hygiene.”
The city’s quiet kava crackdown started in November 2022, when the Health Department issued a summons to KavaSutra, a kava bar on First Street. A couple of months later, KavaSutra got hit again at its 10th Street location, when the department “embargoed” its kava products, according to a lawsuit KavaSutra’s owners later filed against New York City, Mayor Eric Adams, and the Health Department and its commissioner Ashwin Vasa. Then last spring, the agency shut down two kava bars in Williamsburg: Ka-Vá Kava Bar (the space is now a cannabis club) and Kava Social, which never reopened publicly but has operated as a private club since. It’s a fairly existential moment in the New York kava and kratom scene, but the saga has gone largely unnoticed by the wider public. This may be because it’s a small-ish market to begin with, a blip compared to the unlicensed cannabis market that has taken over the city’s retail landscape and baffled the city, state, and law enforcement officials tasked with regulating it. The client base for kava and kratom bars also includes a lot of recovering addicts, who are both used to being overlooked and perhaps would prefer to avoid any extra attention. (“I would say a good 60 to 65 percent of our customers are sober,” McSmith says.)
Craig, one of the regulars I met at Here & Now, said he started taking kava pills in 2010 after returning from Iraq, where he worked as a reporter for human rights organizations. “I was all kinds of messed up. I couldn’t sleep,” he says. He started using kratom early last year, when he walked by a kava bar. “I was like, this is the answer,” he says. Kava bars have since become a central part of his recovery, he says. “A lot of people here have helped me out. Staying on a couch, taking a shower,” he says of Here & Now. “I come here everyday, and I know all of these people.”
Kava, which is derived from the roots of the kava shrub, has for centuries had ceremonial and medicinal uses in the Pacific Islands, and those who use it find it calming and mood-enhancing without the judgment-impairing effects of alcohol. Many kava bars also sell kratom, which is made from the dried leaves of the kratom tree, an evergreen found in Southeast Asia. It’s also sold as a potent extract or pill at stores like Hot Sauce Exotics CBD & Kratom Store in little bottles that fit right alongside 5-Hour Energy drinks and poppers. Depending on the strength of the dose, it can act as a stimulant or a sedative, and it’s marketed here as a treatment for anxiety and addiction. Both are legal in the United States, but only kava has been approved by the FDA as a dietary supplement for personal use (the agency says it has “inadequate information” on whether kratom poses a risk to consumers).
Together, kava and kratom are in a long line of regulatory puzzles the city has tried to solve over the years: CBD, cannabis, chefs curing their own charcuterie in-house, bodegas selling synthetic drugs like K2, and Chinatown business owners hanging roast duck in their windows. “It’s kind of a unique challenge for regulators to figure out how to tackle this because it is such a gray market industry,” says one lawyer whose clients include companies in the cannabis industry and others regulated by the FDA. She pointed to tara flour, which is made from the legumes of the plant of the same name, as an example of a substance that federal and state agencies struggled to regulate. In 2022, Daily Harvest recalled a product made with tara flour — a new ingredient in the US market — as the FDA and Center for Disease Control investigated reports of serious stomach pain from those who had consumed it. 500 people became ill, and 39 of them had their gallbladders removed. This May, two years after the initial recall, the FDA finally banned its use in food. Those in the kava and kratom industry have similarly seen uneven enforcement: federal regulators tend to go after the producers, while local agencies try to shut down sellers like Here & Now. And enforcement is uneven across the country; in Hawaii, where kava is known as ‘awa’ and is part of the native culture, the state’s Department of Health distinguishes between the way Hawaiians have consumed it for centuries, in beverage form, and the concentrated extracts that the health studies were based on. According to a 2023 World Health Organization report, there “are very few published adverse health effects arising from the traditional consumption” in the South Pacific. This is the method Here & Now says it is using.
When McSmith’s bar was first hit with violations for selling kava last July, a health inspector made him dump all of the bar’s product — around $1,500 worth, McSmith says. It’s a sum that KavaSutra, a chain with several stores, could eat, but Here & Now, a smaller operation, couldn’t. In addition to dumping the product, McSmith had to promise not to sell kava and kratom and take down the menus.
The cease-and-desist order came the following month, and McSmith had a hearing in November. The judge ruled in the bar’s favor, dismissing the violations because of failure “to establish that kava or kratom is an adulterant, that when added to water, is poisonous, injurious to health, or unsafe.” The charges were also dismissed in a second hearing and in a December trial before an administrative law judge. None of this seemed to matter: the city wouldn’t renew Here & Now’s food service establishment permit and had issued a petition to revoke it. When reached about the kava bar shutdowns, a representative for the Health Department responded that New York health codes “prohibit” adding kava to food because of “significant” health risks: “We are requiring restaurants serving food containing kava or kratom to stop. And, if they refuse, we are requiring them to close.”
These substances can be dangerous, is the thing. In 2002, the FDA issued an advisory warning consumers that dietary supplements containing kava might be “associated with severe liver injury,” based on studies that measured the effects of highly-concentrated extracts, and in 2020, it published a memorandum concluding that kava is not generally recognized as safe. There have been dozens of lawsuits filed over kratom products, and one Washington family was awarded $2.5 million dollars in the wrongful death lawsuit of Patrick Coyne, who had been taking Kratom Divine’s Maeng Da strain to treat chronic back pain. Unlike kava, kratom is also found to mimic the effect of “scheduled opioid drugs,” according to the FDA. In a Tampa Bay Times analysis of 20 kratom products, researcher Abhisheak Sharma compared one of the tablets, 7ΩHMZ, to “legal morphine,” and a one-ounce bottle of another extract contained nine times the amount of mitragynine (an alkaloid in kratom that functions like opioids) that Sharma considers safe to consume in a day. And while kratom has been adopted by some as a tool for opioid recovery, some treatment groups think it’s detrimental to that process, and even potentially addictive.
But kava and kratom’s boosters make the same arguments as other harm reductionists: They’re just as invested in safety as the city. Shuttering legitimate businesses will only reward shady manufacturers. “Let’s regulate this. Let’s not sell extracts. Let’s have good sourcing. Let’s let customers know what the effects are,” McSmith says. “We’re all pro-regulation because it should be regulated. We don’t want people to get sick.” He says that Here & Now doesn’t sell extracts for this reason, and no other kava and kratom than what they brew in-house. Bartenders go through up to 20 hours of training, depending on their experience with kavatending, and McSmith says he’s careful about sourcing from reputable businesses. One night at Here & Now, he pulled out his phone to show me a photo of what he’d seen at a CBD shop. “Look at these kratom extracts,” he said. “No label, no real education about what you’re drinking, very high dosing, very dangerous.”
For now, McSmith is waiting for a sign that his legal limbo will end. The cafe’s permit expired in December, and he was told he had to wait to renew it until after the closure order was lifted. Then in February, after a judge recommended lifting that closure order, the permit renewal was still denied. His appeal was denied, too, in early May. This week, one of the bar’s regulars launched a GoFundMe to cover costs for the business’s “next legal step.” “We are closed by the city, no longer have a permit, and have until August to try and raise funds through donations and decide to challenge the arbitrary and capricious determination made by the city in state court under an Article 78 proceeding,” McSmith says. Health Department inspectors have been back twice, and cops paid the bar a visit as well.
Here & Now is still in business, kind of. The door is papered over, and curtains are drawn over the front doors. “It’s our community coming through to support us, for sure,” McSmith says. There are enough regulars to stay afloat, but it’s unclear how long this can last. For now, it seems unlikely that the city will come around to kava. Going back to court for the fourth time seems inevitable, he says: “They really try to drown you in paperwork and fines and lawyer time until you just give up.”