Is Trouble Brewing for Dietary Ingredients? Court Upholds NYC Kava Ban

4 min

The U.S. District Court for the Southern District of New York recently upheld New York City's prohibition on steeped kava beverages, concluding that steeping kava root in water constitutes the creation of an unapproved "food additive" and that such beverages could be treated as unsafe under local health regulations. The ruling relied in part on FDA statements, international restrictions, and case reports of hepatotoxicity to support findings of adulteration. However, this outcome diverges from established food law principles and overlooks long-standing recognition that traditional aqueous preparations of kava root are distinct from concentrated extracts and, based on both history of safe use and scientific consensus, fall within the framework of substances generally recognized as safe (GRAS).

Historically, kava root has been consumed for centuries in the Pacific Islands as a cold-water infusion, with widespread safe use well before 1958. Under the Federal Food, Drug, and Cosmetic Act (FFDCA), substances with such pre-1958 safe use qualify as GRAS and are excluded from food additive requirements. Modern regulatory reviews—including the World Health Organization's 2019 assessment—have concluded that traditional aqueous kava preparations pose negligible liver toxicity risk, with a safety profile arguably no greater than that of other widely consumed beverages such as coffee. Several states, including Hawaii and Michigan, have formally recognized this distinction, treating noble root aqueous kava as GRAS while drawing a regulatory line that excludes nontraditional solvent-based extracts.

In upholding the ban, the SDNY dismissed GRAS arguments and adopted a broad interpretation of "food additive," reasoning that steeping kava alters the chemical composition of water. This interpretation diverges from federal case law, including the United States v. 29 Cartons of Black Currant Oil and United States v. Two Plastic Drums of Black Currant Oil decisions, where courts rejected attempts to classify foods as additives merely because they were encapsulated or mixed with another vehicle. Those rulings made clear that the botanical substance itself is the food, and by analogy, kava steeped in water should be treated as the food itself, with water serving only as a neutral delivery medium.

The court's approach also reflects a selective reliance on safety evidence. While emphasizing isolated reports of hepatotoxicity and citing FDA advisories, the decision did not account for the broader body of scientific literature and regulatory experience, which consistently ties such risks to nontraditional preparations (e.g., solvent-based extracts or aerial plant parts) rather than to traditional root-water infusions. By treating all kava products interchangeably, the SDNY overlooked regulatory distinctions that modern practice increasingly requires and that state-level authorities have already incorporated.

Beyond kava, the implications of the decision may extend more broadly. DSHEA expressly permits the sale and use of dietary supplements, and federal law does not prohibit dietary ingredients from being served within food establishments. Indeed, it's common practice to add dietary ingredients to smoothies and other beverages at juice bars, for instance. The SDNY's interpretation, however, could invite local regulators to deem any dietary ingredient—whether kava, ashwagandha, creatine, or others—an "unapproved food additive" when consumed in beverages, such as when added to a smoothie at the local health food establishment, even in the absence of a federal prohibition. This expansive reasoning risks empowering municipalities to regulate in ways that undermine the distinctions Congress created in the FFDCA and DSHEA, potentially destabilizing long-standing business practices in health food stores, gyms, and restaurants.

For industry, the decision raises several considerations. Companies should monitor closely for potential appeals or preemption challenges, as the ruling appears to diverge from federal statutory principles and persuasive appellate precedent. Businesses operating in the functional beverage or supplement sector may also face copycat measures from other jurisdictions and should evaluate compliance strategies in anticipation of broader local enforcement. Finally, industry stakeholders should continue documenting the scientific and historical evidence supporting the GRAS status of traditional ethnobotanicals such as kava, in order to preserve a strong evidentiary record for future regulatory or judicial review.

In sum, the SDNY's treatment of steeped kava beverages illustrates how local regulatory actions, if left unchecked, can reach beyond traditional public health authority and disrupt the carefully maintained balance between food safety oversight and consumer access established by federal law. While limited to one jurisdiction for now, the ruling underscores the need for vigilance, as other regulators may view it as a model for restricting products long recognized as safe under federal statutory and scientific frameworks.

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