A Lower East Side man who sank his life savings into a cafe selling tea with kava and kratom said the city has wrongly shut him down — asserting the beverages are “dangerous adulterants.”
Tobly McSmith, who opened Here & Now on Allen Street in December 2022, has filed a lawsuit to force the city to let him reopen the business he started as a way to give recovering addicts a place to go.
Kava is derived from a root from the Pacific Islands, while kratom is an herbal substance from Southeast Asia, both of which have been used for centuries to help people relax, are widely available in the Big Apple — despite neither being approved by the US Food and Drug Administration as a dietary supplement.
McSmith, 44, hired eight people, signed a 10-year lease and was serving 60 to 70 customers a day before the city Health Department refused to renew his permit in April, McSmith said.
“Kava means the world to me,” he told The Post. “I stopped drinking about 15 years ago. . . . It was boring, nowhere to find community that wasn’t revolving around alcohol.”
His cafe — like others around the five boroughs specializing in kava and kratom tea — became that community, he said.
“It felt like a mission to be able to show people there’s a way to have a life and friends outside of alcohol. . . . The Health Department, without any rhyme or reason, is just taking that away from us,” McSmith said.
He’s spent $50,000 in lawyer fees, an amount he said was “every bit of our profit.
“I don’t sleep at night. I’ve lost a lot of weight. I’m going to have to dip into my 401K to fight the fight,” he lamented.
The Health Department first claimed in July 2023 that Here & Now was in violation of health codes for mixing the substances with water to make tea, asserting the combination “constituted dangerous adulterants.”
“This was unexpected and perplexing,” Here & Now said in its Manhattan Supreme Court lawsuit.
Judges at the city’s Office of Administrative Trials and Hearings, or OATH, repeatedly sided with the cafe, noting the city failed to prove kava and kratom are dangerous.
After losing their case at OATH, the city declined to renew Here & Now’s permit.
McSmith said four or five other cafes selling kava and kratom have also been shuttered or targeted by the city.
“You can buy kava in Whole Foods. You can go to any bodega and you can buy kava, you can buy kratom, you can buy extracts, you can buy it bottled,” said Here & Now’s lawyer Benjamin Noren. “Yet the city is wasting their time and resources shutting down my guys.”
“Kava and kratom are not approved by the FDA to be added to food, and the Department will take enforcement action once they are found during the course of an inspection,” a Health Department spokeswoman said.
“This includes requiring the eateries to stop offering these items, and if they refuse, requiring them to close,” she added.
Kava is banned in six states and has earned the nickname “gas station heroin,” according to a report. Kratom, which the FDA has said can cause liver damage, is banned in Myanmar and the United Kingdom, which also bans kava.
