There seems to be quite a lot of confusion about this issue, so I thought it might be helpful to try to clarify what exactly the rules say and what was the likely rationale behind the current regulations. Note this isn't a legal text, we aren't lawyers, this is just our understanding of what happened and why. happy to be corrected or open to discussion on our take on it.
TLDR: The regulations were created in the aftermath of the European kava liver scare and the regulators wanted to differentiate between what they saw as safe forms of kava and "new" kava products. The ban on flavours/other foods was seen as a necessary step to ensure kava doesn't penetrate into to the general food supply and doesn't end up getting consumed by people unaware of its properties.
A bit of context:
Australia and New Zealand have a fairly unique legal approach to kava: unlike most jurisdictions, Aus and NZ regulate kava as food under the joint Food Standards Australia New Zealand (FSANZ) framework. Kava has its own unique food standard (2.6.3) listed in the Australia New Zealand Food Standards Code. You read it in its entirety here: https://www.legislation.gov.au/F2015L00466/latest/text
It's a short standard that starts off on a negative note. The first point it makes is that by default "a food for sale must not consist of, or have as an ingredient or a component, kava or any substance derived from kava, unless expressly permitted by this Code. This Standard contains the relevant permissions."
It then proceeds to define what kava and kava roots are, and, what the only exceptions to the prohibition listed upfront are:
In the past, some people occasionally expressed doubts whether the correct interpretation of that initial prohibition was that only kava as defined by 2.6.3-3 could be used in other foods, but the authorities in both countries have made it clear that the correct interpretation is that only pure kava (with no other ingredients) is considered to be legal as food.
More recently, there were some doubts whether this interpretation also extended to food additives and processing aids (that normally do not even need to be disclosed on the list of ingredients), so in order to make sure there are no doubts, the food standards code got amended to include one additional clause:
So, basically, the only types of kava that can be sold as food in New Zealand or Australia are either products that contain *nothing* but pure kava roots, or products made via the cold water preparation method. There's no clear definition of cold water in the standard, but our understanding is that the term was used to differentiate between traditional preparation that relies on water "cold enough" to dip your hands in, vs boiling/hot water that one may use to make tea or coffee.
So, on the one hand, the rules in New Zealand/Australia are very pro-kava (as there are few other places in the world where it's regulated as food), but on the other hand the rules are quite conservative when it comes to the actual forms in which kava can be sold.
Extracts (including CO2 extracts), flavoured drinks, etc cannot be sold as food.
What about dietary supplements?
One could ask: could these things be sold as "dietary supplements" or under some other label? Unlike in some other places, in New Zealand dietary supplements fall under the Food Acts and must still comply with the rules and restricitons imposed by the Food Standards Code, in addition to dietary supplements-specific regulations. In Australia, there is no separate regulatory category for dietary supplements. All supplements are either foods or medicines, depending on the supplement's individual features (if it's food, then it must meet food standards code rules, if it's a medicine, then it must be approved by the Therapeutic Goods Authority, which adopted an even narrower definition of permitted kava than the above standard). So no, there's no other loophole. If you want to sell kava for human consumption in either Australia or New Zealand, then it must be pure kava, or drink/product made via cold water extraction only.
But why?
So why the rules seem fairly clear, the reasons why they got implemented in the first place may appear a bit murky, especially when it comes to the ban on flavours/other ingredients.
The ban on using organic solvents is fairly understandably in the context of when the regulations were created and why.
The impulse for creating a separate standard for kava came in the late 1990s/early 2000s in the wake of the great kava liver scare in Europe. Countless jurisdictions across Europe and beyond were banning kava due to concerns (now, or even back then, known to be totally overblown and largely ridiculous - see our interview with Dr Kirk Huffman for a good background story https://kavasociety.nz/blog/2018/2/...rld-a-fascinating-perspective-from-dr-huffman) over the possible link between kava consumption and liver damage failure. Even back then many legislators were expressing doubts whether or not that response to reports coming from Germany was proportionate and reasonable (see this old KF thread: https://kavaforums.com/forum/threads/a-fascinating-debate-on-kava-in-the-uk-parliament.10626/), but in most jurisdictions kava had only ever been known as a novel supplement/quasi medication and the general approach to everything new is to err on the side of caution (see this excellent article examining this specific point: https://pubmed.ncbi.nlm.nih.gov/21879526/). In Europe and beyond kava was basically seen as a totally new quasi therapeutic product with little history of safe or cultural usage. It got introduced to local markets and then regulators heard reports of people dying, hence they erred on the side of caution and just banned it. There was hardly any pro kava lobby in existence in Europe, Japan, or Brazil, so the ban came into existence largely unnopposed. In some places kava was not just banned for consumption, but later ended up getting classified as drug when various countries published wholesale lists of all potential ingredients they could find in the booming "legal high" industry. We now know most reports re liver toxicity were of dubious credibility or with clear link to kava. and those that could be seen as clearly linked to the kava supplements, most likely involvedp roducts containing poor quality of the plant material, dubious production/qc process, potential use of synethetic kavain, and/or may have included cases suffering from random allergic reactions.
The situation was totally different in New Zealand, and, to an extent, Australia. Kava had been widely consumed around the Pacific and among the Pacific diaspora in New Zealand and Australia for decades, if not longer. Virtually NZ prime ministers consumed kava during their trips to the Pacific, kava was widely known (even if not particularly popular) and generally perceived as totally benign "muddy water" - a bitter tasting traditional drink that offered minor effects and caused little or no social or individual harm. The idea that one could consume the equivalent of asmall kava shell and die sounded (and indeed was) ridiculous. What is more, the idea of an outright ban of a substance consumed by a large portion of the population just because of some dubious reports from far away Germany was neither politically nor legally feasible.
So, instead of a ban, FSANZ launched an investigation to figure out the safety profile of kava. The report got published in 2004 (https://www.foodstandards.gov.au/sites/default/files/publications/Documents/30_Kava1.pdf) and concluded that:
To put it simply: traditional forms of kava seemed safe, but those "new" types of products made from kava using organic solvents were exactly this "new" and "compositionally different" products with unknown and potentially unacceptable risk profile. Hence the decision was made that these "new" products would not be allowed to be sold as food, while the "old"/"traditional" kava would now be formally regulated as food. In order to avoid any doubts about what that safe kava is, FSANZ created the 2.6.3 food standard for kava.
So, this seems like a fairly reasonable approach, certainly much better than what happened in Europe and beyond.
What may seem a bit less reasonable and puzzling is that ban on mixing kava with other flavours and/or foods. Why shouldn't people be allowed to sell strawberry flavoured kava, or kava mixed with coconut water in a kava bar?
To understand it, one has to look at the original documentation presented to support the creation of the 2.6.3 standard. The Final Assesment Report that preceded the implementation of the kava food standard included a detailed analysis of all potential legal options and submissions from all stakeholders that made submission in response to the announcement re FSANZ's work on the standard.
In the report's summary the following rationale was provided to support the ban on mixing kava with other foods:
So basically, based on the above and other info from the rreport, it's a mix of views from the submitters (which included Pacific stakeholders!) and the Government's view that if kava is to be sold as food, it should only be sold in its traditional form, as this minimises the potential that it may be abused/misused by those who have no idea about its intoxicating properties.
The regulators faced a dilemma. On the one hand they wanted kava to remain "lightly" regulated, as a regular food item (rather than a drug), in light of its widespread use among Pacific diaspora, and in light of its perceived benign profile. But on the other hand, they had to acknowledge it did have some psychoactive/intoxicating properties and hence it was not the same as other foods in the Code. If the ban had not been put in place, then this "intoxicating" substance could be added to lollies, soft drinks, any food really, and then it could be consumed by people who may not expect or indeed desire to experience kava's effects. It still remained legal for one to mix kava with other things at home, the ban only applied to commercial food sales. One can debate if this was a reasonable approach, but note that in NZ and Aus other "psychoactive" substances are generally even more heavily regulated or banned. For example, energy drinks have their own rules nad regulations (https://www.nzbeveragecouncil.org.nz/energy-drink). Indeed, a popular American drink Prime is currently banned in NZ (i.e. cannot be sold as food) due to its caffeine content extending legal limits (https://thespinoff.co.nz/kai/28-06-2023/the-playground-demand-for-prime-energy-drinks-explained). So in this context, this regulation wasn't particularly crazy or radical.
Interestingly, the restriction on mixing kava with other foods (and the differentiation between kava extracts and kava as food) seemed to have been supported by submissions made by various Pacific governments, and the Pacific Islands Forum. Perhaps this was seen as a way of differntiating between what they were sure to be safe and what could cause further issues for kava's legality.
The report summed up the views of producers on this issue as follows:
TLDR: The regulations were created in the aftermath of the European kava liver scare and the regulators wanted to differentiate between what they saw as safe forms of kava and "new" kava products. The ban on flavours/other foods was seen as a necessary step to ensure kava doesn't penetrate into to the general food supply and doesn't end up getting consumed by people unaware of its properties.
A bit of context:
Australia and New Zealand have a fairly unique legal approach to kava: unlike most jurisdictions, Aus and NZ regulate kava as food under the joint Food Standards Australia New Zealand (FSANZ) framework. Kava has its own unique food standard (2.6.3) listed in the Australia New Zealand Food Standards Code. You read it in its entirety here: https://www.legislation.gov.au/F2015L00466/latest/text
It's a short standard that starts off on a negative note. The first point it makes is that by default "a food for sale must not consist of, or have as an ingredient or a component, kava or any substance derived from kava, unless expressly permitted by this Code. This Standard contains the relevant permissions."
It then proceeds to define what kava and kava roots are, and, what the only exceptions to the prohibition listed upfront are:
In the past, some people occasionally expressed doubts whether the correct interpretation of that initial prohibition was that only kava as defined by 2.6.3-3 could be used in other foods, but the authorities in both countries have made it clear that the correct interpretation is that only pure kava (with no other ingredients) is considered to be legal as food.
More recently, there were some doubts whether this interpretation also extended to food additives and processing aids (that normally do not even need to be disclosed on the list of ingredients), so in order to make sure there are no doubts, the food standards code got amended to include one additional clause:
So, basically, the only types of kava that can be sold as food in New Zealand or Australia are either products that contain *nothing* but pure kava roots, or products made via the cold water preparation method. There's no clear definition of cold water in the standard, but our understanding is that the term was used to differentiate between traditional preparation that relies on water "cold enough" to dip your hands in, vs boiling/hot water that one may use to make tea or coffee.
So, on the one hand, the rules in New Zealand/Australia are very pro-kava (as there are few other places in the world where it's regulated as food), but on the other hand the rules are quite conservative when it comes to the actual forms in which kava can be sold.
Extracts (including CO2 extracts), flavoured drinks, etc cannot be sold as food.
What about dietary supplements?
One could ask: could these things be sold as "dietary supplements" or under some other label? Unlike in some other places, in New Zealand dietary supplements fall under the Food Acts and must still comply with the rules and restricitons imposed by the Food Standards Code, in addition to dietary supplements-specific regulations. In Australia, there is no separate regulatory category for dietary supplements. All supplements are either foods or medicines, depending on the supplement's individual features (if it's food, then it must meet food standards code rules, if it's a medicine, then it must be approved by the Therapeutic Goods Authority, which adopted an even narrower definition of permitted kava than the above standard). So no, there's no other loophole. If you want to sell kava for human consumption in either Australia or New Zealand, then it must be pure kava, or drink/product made via cold water extraction only.
But why?
So why the rules seem fairly clear, the reasons why they got implemented in the first place may appear a bit murky, especially when it comes to the ban on flavours/other ingredients.
The ban on using organic solvents is fairly understandably in the context of when the regulations were created and why.
The impulse for creating a separate standard for kava came in the late 1990s/early 2000s in the wake of the great kava liver scare in Europe. Countless jurisdictions across Europe and beyond were banning kava due to concerns (now, or even back then, known to be totally overblown and largely ridiculous - see our interview with Dr Kirk Huffman for a good background story https://kavasociety.nz/blog/2018/2/...rld-a-fascinating-perspective-from-dr-huffman) over the possible link between kava consumption and liver damage failure. Even back then many legislators were expressing doubts whether or not that response to reports coming from Germany was proportionate and reasonable (see this old KF thread: https://kavaforums.com/forum/threads/a-fascinating-debate-on-kava-in-the-uk-parliament.10626/), but in most jurisdictions kava had only ever been known as a novel supplement/quasi medication and the general approach to everything new is to err on the side of caution (see this excellent article examining this specific point: https://pubmed.ncbi.nlm.nih.gov/21879526/). In Europe and beyond kava was basically seen as a totally new quasi therapeutic product with little history of safe or cultural usage. It got introduced to local markets and then regulators heard reports of people dying, hence they erred on the side of caution and just banned it. There was hardly any pro kava lobby in existence in Europe, Japan, or Brazil, so the ban came into existence largely unnopposed. In some places kava was not just banned for consumption, but later ended up getting classified as drug when various countries published wholesale lists of all potential ingredients they could find in the booming "legal high" industry. We now know most reports re liver toxicity were of dubious credibility or with clear link to kava. and those that could be seen as clearly linked to the kava supplements, most likely involvedp roducts containing poor quality of the plant material, dubious production/qc process, potential use of synethetic kavain, and/or may have included cases suffering from random allergic reactions.
The situation was totally different in New Zealand, and, to an extent, Australia. Kava had been widely consumed around the Pacific and among the Pacific diaspora in New Zealand and Australia for decades, if not longer. Virtually NZ prime ministers consumed kava during their trips to the Pacific, kava was widely known (even if not particularly popular) and generally perceived as totally benign "muddy water" - a bitter tasting traditional drink that offered minor effects and caused little or no social or individual harm. The idea that one could consume the equivalent of asmall kava shell and die sounded (and indeed was) ridiculous. What is more, the idea of an outright ban of a substance consumed by a large portion of the population just because of some dubious reports from far away Germany was neither politically nor legally feasible.
So, instead of a ban, FSANZ launched an investigation to figure out the safety profile of kava. The report got published in 2004 (https://www.foodstandards.gov.au/sites/default/files/publications/Documents/30_Kava1.pdf) and concluded that:
To put it simply: traditional forms of kava seemed safe, but those "new" types of products made from kava using organic solvents were exactly this "new" and "compositionally different" products with unknown and potentially unacceptable risk profile. Hence the decision was made that these "new" products would not be allowed to be sold as food, while the "old"/"traditional" kava would now be formally regulated as food. In order to avoid any doubts about what that safe kava is, FSANZ created the 2.6.3 food standard for kava.
So, this seems like a fairly reasonable approach, certainly much better than what happened in Europe and beyond.
What may seem a bit less reasonable and puzzling is that ban on mixing kava with other flavours and/or foods. Why shouldn't people be allowed to sell strawberry flavoured kava, or kava mixed with coconut water in a kava bar?
To understand it, one has to look at the original documentation presented to support the creation of the 2.6.3 standard. The Final Assesment Report that preceded the implementation of the kava food standard included a detailed analysis of all potential legal options and submissions from all stakeholders that made submission in response to the announcement re FSANZ's work on the standard.
In the report's summary the following rationale was provided to support the ban on mixing kava with other foods:
So basically, based on the above and other info from the rreport, it's a mix of views from the submitters (which included Pacific stakeholders!) and the Government's view that if kava is to be sold as food, it should only be sold in its traditional form, as this minimises the potential that it may be abused/misused by those who have no idea about its intoxicating properties.
The regulators faced a dilemma. On the one hand they wanted kava to remain "lightly" regulated, as a regular food item (rather than a drug), in light of its widespread use among Pacific diaspora, and in light of its perceived benign profile. But on the other hand, they had to acknowledge it did have some psychoactive/intoxicating properties and hence it was not the same as other foods in the Code. If the ban had not been put in place, then this "intoxicating" substance could be added to lollies, soft drinks, any food really, and then it could be consumed by people who may not expect or indeed desire to experience kava's effects. It still remained legal for one to mix kava with other things at home, the ban only applied to commercial food sales. One can debate if this was a reasonable approach, but note that in NZ and Aus other "psychoactive" substances are generally even more heavily regulated or banned. For example, energy drinks have their own rules nad regulations (https://www.nzbeveragecouncil.org.nz/energy-drink). Indeed, a popular American drink Prime is currently banned in NZ (i.e. cannot be sold as food) due to its caffeine content extending legal limits (https://thespinoff.co.nz/kai/28-06-2023/the-playground-demand-for-prime-energy-drinks-explained). So in this context, this regulation wasn't particularly crazy or radical.
Interestingly, the restriction on mixing kava with other foods (and the differentiation between kava extracts and kava as food) seemed to have been supported by submissions made by various Pacific governments, and the Pacific Islands Forum. Perhaps this was seen as a way of differntiating between what they were sure to be safe and what could cause further issues for kava's legality.
The report summed up the views of producers on this issue as follows:
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