Longmont man faces federal charges in Gatorade label tampering

A 38-year-old Longmont man suspected of altering Gatorade labels to highlight golfer Tiger Woods’ infidelities was arrested Wednesday afternoon on federal anti-tampering charges, according to the U.S. Attorney’s Office and the Food and Drug Administration’s Office of Criminal Investigations.

Jason Eric Kay is scheduled to appear in U.S. District Court in Denver on Thursday. If convicted on all counts, Kay faces hundreds of thousands of dollars in fines and up to five years in prison.

The altered Gatorade labels, which were placed on Tropical-Mango flavored Gatorade bottles and portrayed Woods and his wife, Elin, with the word “unfaithful” on the other side, appeared in Safeway and King Soopers stores in Erie, Boulder, Broomfield and Longmont last week.

According to a criminal complaint filed Tuesday in U.S. District Court, PepsiCo asked the FDA on Friday to look into the matter.

The arrest affidavit states that PepsiCo received an e-mail from Kay on Monday in which he said he represented the artist who made the labels and proposed an “unofficial” partnership. He said the campaign already had created a lot of “buzz” for Gatorade. He suggested Gatorade pay for travel and per-diem costs for the artist, while publicly denying the connection, so the artist could place alternatively labeled Gatorade bottles in various cities.

“This is the cheapest marketing campaign you could ever participate in,” the e-mail said. “It is good for Gatorade and good for art.”

The e-mail to PepsiCo included a phone number.

An FDA special agent visited Kay in his Longmont home Monday.

The agent said Kay admitted responsibility for changing the labels, and he considered it “pop art” in the style of Andy Warhol. Kay said he acted alone. He purchased Gatorade bottles, used a Kinko’s photocopier and clear adhesive to make the new labels, then returned at least 67 relabeled bottles to store shelves, according to the FDA.

The agent said Kay told him he knew his actions were illegal but didn’t think they would attract so much attention. When told his actions appeared to violate federal anti-tampering laws as well as the federal Food, Drug and Cosmetic Act, Kay said: “I didn’t think this was that big of a deal.”

Kay is charged with introducing misbranded food into interstate commerce, altering a food label on an item that was available for sale and tampering with the labeling of a consumer product with intent to cause serious injury to the business of a person.

Jeff Dorschner, a spokesman for the U.S. Attorney’s Office, said there is no evidence anyone tampered with the contents of the Gatorade bottles, and the tampering charges refer only to the labels.

“The importance of the arrest is to protect the integrity of consumer products that are for sale,” he said. “If someone tampers with a label, you can no longer have confidence about the ingredients of the product.”

Kay, who is in custody, could not be reached for comment. It is not known if he has an attorney yet.

Gatorade spokeswoman Karen May said in an e-mail: “From the onset, our primary concern has been the safety of our consumers and the integrity of our products.”