The new business was planning to open in the early spring but has hit regulatory roadblocks. (Mike Platania photo)
A kava kerfuffle between the state government and a new specialty bar in the Fan is taking a litigious turn.
KavaClub, which aims to sell the trendy drink kava from the former Canon & Draw Brewing Co. space at 1529 W. Main St., is in a dispute with the Virginia Department of Health after the agency denied the business’s operating permit application and has prevented it from opening.
The permit denial was handed down in a May 25 report sent to KavaClub. Not going down without a fight, the business earlier this week filed an appeal of the decision in Richmond Circuit Court, according to court documents, which include a copy of the VDH report.
The technical classification of KavaClub’s namesake menu item, kava, looks to be the root of the dispute.
Kava is a nonalcoholic yet psychoactive drink originating in the Pacific Islands. The VDH states in its report that kava and kratom, another ingredient that would be used in the production of KavaClub’s offerings, should be classified as food additives. However, VDH states that the two ingredients are not Food and Drug Administration-approved food additives and that “little to no scientific peer-reviewed evidence was submitted to support the safety of these items.”
KavaClub claims otherwise and argues that kava is safe and not subject to FDA food additive regulations and should be classified as a dietary supplement.
Fred Bryant
The business is led by Fred Bryant, a local entrepreneur who in the late 2000s co-founded online broker-dealer WealthForge before exiting the business in 2016. Bryant described the kava situation as a misunderstanding between his company and the VDH, and noted that his past professional dealings have made him familiar with regulatory agencies.
“I appreciate, understand and respect the importance of the regulatory framework we operate in. It’s important to know the rules of the land and operate within them,” Bryant said in an interview Thursday. “But this particular experience with the Virginia Department of Health has been really surprising.”
Kava is made by steeping the ground leaves of a type of pepper plant commonly found in Polynesia. It’s a production process that KavaClub points to in its claims that the drink is technically a “natural root tea” and therefore a dietary supplement. The VDH push to classify it instead as a food additive subjects it to more stringent regulations.
Also in its May 25 report, VDH says it was alerted in April to social media posts KavaClub made that appeared to show the business operating without the proper VDH permit. During an April 13 call between KavaClub and the VDH, the transcript of which is provided in court documents, KavaClub stated that it held an event at which it served kava at no cost and solely to family, friends and staff.
In addition to the appeal, Bryant said the company is preparing to file a lawsuit against VDH in Richmond Circuit Court. The company has hired attorneys Dale Mullen, Michael Brady and Michelle Hoffer of Whiteford, Taylor & Preston as well as Justin Earley and James Rohde of Earley Legal Group.
“Unfortunately we’re in a position where the best path forward is to file litigation,” Bryant said. “We just don’t have faith the Department of Health is able to operate in a good-faith manner.”
Bryant said KavaClub plans to allege in the lawsuit that the VDH doesn’t have the authority to deny the application and that kava is a food, not a food additive. He said the lawsuit would likely come after the appeal process.
Dr. Elaine Perry, VDH’s director for the Richmond and Henrico Health Districts (RHHD), said in an email that, “RHHD takes its restaurant permitting responsibilities very seriously.”
“It is RHHD’s duty, as the local public health agency, to protect the health of Richmonders and Henricoans and ensure food safety,” Perry said.
KavaClub initially hoped to open in early spring, and though Bryant didn’t disclose how much money has gone into the business, he said he’s the company’s sole investor.
“My co-founders and I wanted to be in control of it. I was willing to put the money up so we have the freedom to go on our own and be creative,” he said.
Also involved in KavaClub are local entrepreneur DJ Lee and hospitality industry veteran Dale Barta.
Bryant said that the goal of the club is to offer an alternative social space that doesn’t involve alcohol, and that the intention is to open multiple locations and production facilities throughout the state and region.
