KRATOM CAFES PUSH BACK AGAINST HEAVY-HANDED ACTIONS BY NYC HEALTH DEPARTMENT

Kratom advocates have gotten used to managing a minefield of governing bodies and regulatory agencies attempting to take action against the herbal supplement. 

However, the health department's actions in New York City can best be described as a surprise attack, threatening local businesses' livelihood by testing legal authority. 

Rather than pursue a change in public policy at the city or state level, the Department of Health and Mental Hygiene (DOHMH) took action against the licenses of a handful of local cafes due to worries over kratom and kava. The city cites the lack of approval by the Food and Drug Administration (FDA). The businesses have responded by pouring “every bit of our profit” into a lawsuit to reverse the action. 

Caught in the crossfire are kratom consumers and other businesses that sell herbal supplements that have been targeted by the FDA, regardless of whether the products are legal or not. 

The issue began in November of 2022 when the department began issuing summons, seizing products and going as far as shutting down two establishments that have gone out of business for good. One of the initial establishments that faced pressure from the health department filed a lawsuit against the city after products were “embargoed” by DOHMH, per comments to the press. 

“We Need to Stand Up”

Here & Now is a smaller kratom and kava bar that came into the department’s sights in July of 2023. The first violation for selling drinks mixed with herbal supplements required the bar to dispose of $1500 worth of products and included a cease-and-desist order to stop selling specific supplements. 

Except there was one issue with the department’s action: At a hearing in November of last year, a judge ruled the DOHMH had failed “to establish that kava or kratom is an adulterant, that when added to water, is poisonous, injurious to health or unsafe.” Here & Now was also victorious in a second hearing and a trial before an administrative law judge. 

Then the city declined to renew their license and issued a petition to revoke their ability to stay open. 

That has led to a renewed legal battle for the owner of Here & Now, who has already lost an initial appeal to renew his permit. Tobly McSmith told local media that despite a judge recommending the city to lift the closure order, the only remaining option is a lawsuit to challenge the city’s ruling to deny the permit. On a GoFundMe page started by one of the bar’s regulars, Here & Now announced it had filed a lawsuit on August 19 of this year. 

Both Here & Now and Kavasutra, the first establishment to be penalized by the city, are currently suing the DOHMH in an attempt to reopen. McSmith said he feels the city is trying to win by “drowning” small businesses in legal fees and fines. With his community’s backing, McSmith is trying to challenge the city regarding access to herbal alternatives. 

“NYC could set a dangerous precedent and the domino effect could ripple through the country,” read an update on the Here & Now GoFundMe. “Other cities will follow what NYC does. We need to stand up and say no.”

Jurisdictional Double Standard

Another cause for concern from the public’s standpoint is a double standard in how the DOHMH views the FDA’s authority over businesses in New York City. 

In August 2017, the two departments clashed over a local law that would require calorie counts to be posted by certain food establishments. While the FDA worked out rules for calorie labeling, the DOHMH passed requirements at the local level, despite objections from the federal agency. With the FDA on their side, a group of trade organizations filed a lawsuit to stop the calorie labeling law from taking effect. 

At the time, the DOHMH had no problem defying the FDA in favor of sensible, local ordinances. Health Commissioner Dr. Mary Bassett pointed out the questionable timing of the FDA’s decision to oppose calorie labeling. 

“Though chain restaurants in New York City have been providing this information for nearly 10 years, and federal disclosure requirements have been in effect since 2010, the FDA has taken the position that chains can stop providing customers with critical nutrition information,” Bassett said. “New Yorkers shouldn’t have to wait to see if the FDA decides to enforce menu labeling nationally.” 

Seven years later, the DOHMH is now siding with the FDA in a crusade against kratom. This development has led to frustration from the community supporting Here & Now. One of the bullet points on their GoFundMe mentions that these types of establishments have operated in NYC since 2015 and questions why the city is taking action now–similar to the FDA’s change of course on calorie labeling. 

Instead of waiting for the full story to be told on kratom and kava, the city is instead relying on the FDA’s preliminary warnings on kratom to limit whether or not a legal supplement can be served at an establishment with a license from the health department. 

The bullet point ended with a simple set of questions: “Why in 2023 (when this started) did things change? Why would you close a small business?”