Lower East Side cafe sues NYC over kava and kratom shutdown

Tobly McSmith, the owner of Here & Now cafe in the Lower East Side, has filed a lawsuit against New York City after the Health Department shut down his establishment for serving kava and kratom tea. McSmith, who opened the cafe in December 2022 to provide a community space for recovering addicts, claims the city wrongly labeled these beverages as dangerous. Despite kava and kratom being widely available in stores, the Health Department refused to renew his permit, citing health code violations. The cafe was serving 60 to 70 customers daily before the permit issue arose in April 2023. McSmith has invested significant resources into the business, including hiring eight employees and signing a 10-year lease. He expressed distress over the financial burden of legal fees, which have consumed his profits, and the emotional toll of the situation, stating he has lost sleep and weight due to the stress. Judges at the city’s Office of Administrative Trials and Hearings sided with McSmith, indicating the city failed to prove that kava and kratom are harmful. However, the Health Department continued to pursue enforcement actions against Here & Now and other similar cafes, leading to multiple closures. McSmith argues that the city is misallocating resources by targeting his cafe while kava and kratom remain available in various retail outlets. The Health Department maintains that these substances are not FDA-approved for food use and will take action against establishments that offer them.