A Lower East Side man who spent his entire fortune on a cafe selling kava and kratom-infused teas said the city wrongfully shut him down, claiming the drinks were “dangerously adulterated.”
Tobry McSmith, who opened Here and Now on Allen Street in December 2022, has filed a lawsuit to force the city to reopen the business she started to provide a place for people recovering from drug addiction.
Kava is extracted from a Pacific Island root and kratom is a Southeast Asian herb, both of which have been used for centuries to help people relax, but neither has been approved as a dietary supplement by the U.S. Food and Drug Administration, yet they are widely available in New York.
McSmith, 44, employed eight people, had a 10-year lease and served 60 to 70 customers a day before the city Health Department refused to renew his business license in April, McSmith said.
“Kava means the world to me,” he told The Post. “I quit drinking about 15 years ago. … I was bored, and I couldn't find a community anywhere that didn't revolve around alcohol.”
His cafe, like others around the five boroughs that specialize in kava and kratom tea, has become that community, he said.
“I felt like it was my mission to show people that there are ways to have a life and friends outside of alcohol, and the health department is just taking that away from us for no reason,” McSmith said.
He's spent $50,000 on legal fees, which he says is “all of our profit.”
“It keeps me up at night. I've lost a lot of weight. I have to dip into my 401K to fight,” he lamented.
The Ministry of Health first alleged in July 2023 that Here & Now had breached health laws by mixing these substances with water to make tea, and that the combination “constituted a dangerous adulteration.”
“This was an unexpected and disconcerting event,” Here & Now said in its lawsuit filed in Manhattan Supreme Court.
Judges at the city's Office of Administrative Trials and Hearings (OATH) have repeatedly sided with the cafe, finding the city had failed to prove that kava and kratom are dangerous.
After losing the OATH lawsuit, the city refused to renew Here & Now's permit.
McSmith said four or five other cafes selling kava and kratom have also been closed or restricted by the city.
“You can buy kava at Whole Foods. You can go to any liquor store and buy kava. You can buy kratom. You can buy extracts. You can buy bottled kava,” said Benjamin Nolen, an attorney with Here & Now, “and yet the city is wasting time and resources shutting down my people.”
“Kava and kratom are not approved by the FDA for addition to food and the Ministry of Health will take enforcement action if discovered during testing,” a Ministry of Health spokesperson said.
“This includes demanding that restaurants stop serving these items and closing if they refuse,” she added.
Kava is banned in six states and has been nicknamed “gas station heroin.” According to reports. Kratom, which the FDA says can cause liver damage, is banned in Myanmar and the UK, where kava is also banned.
