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Artist Charged for Gatorade Label Tampering

An artist comparing his work to that of Andy Warhol has not only gotten his 15 minutes of fame, but charges of tampering with food labels, as well. That’s a federal offense.


The 38-year-old artist, Jason Eric Kay of Longmont, Colo., had hit on what he was sure would be a pop art and marketing sensation: relabeling bottles of Gatorade with new labels bearing a picture of golfer Tiger Woods and his estranged wife Elin Woods on one side, and the word “unfaithful” in large block letters on the other. His work, he later told federal investigators, was similar to that of the late Warhol, who achieved notoriety through his use of consumer products in popular art. Apparently, Pepsico, Gatorade’s parent company, didn’t feel quite the same way. 



According to a criminal complaint filed Tuesday in U.S. District Court in Denver, Kay attached the labels, which he had made in a copy shop, on bottles in King Soopers, Rite Aid, Safeway, Target, and Walgreens around the Denver area. The bottles were even numbered like limited edition prints, with 67 of a planned 100 being distributed. Kay’s efforts weren’t in secret, however. Masquerading as a representative of the artist, Kay pitched his idea to Pepsico as he was working on the project, even keeping them updated on his progress. 



Over the next couple of days, he and a Gatorade employee exchanged emails about the project which were later turned over to federal investigators. 



”I represent the artist doing the ‘unfaithful’ pop art labels in the Greater Denver area,” he wrote in one email. “He’s been buying the 1-quart Tropical Mango, replacing the label with his art label and then re-merchandising them in stores here for less than a week. In this short time several people have contacted me and the story has even made the local news. We’re creating quite a buzz!”



Several people had contacted him to purchase bottles, he said in the email, but he wasn’t interested in selling to individual collectors. Kay was more interested in sparking conversation about the “stupid” scandal surrounding Woods, who recently admitted to having an affair, leading to a split with his wife and the loss of lucrative endorsements by several companies, including Gatorade. The company insists their decision was not related to the scandal. 



Suggesting Gatorade could “participate unofficially (while denying this connection)” by offering financial support in the way of travel costs and per diem, Kay added “This is the cheapest marketing campaign you could ever participate in. It is good for Gatorade and good for art.”


Kay, who filed for unemployment benefits in December, was arrested Wednesday. Federal law enforcement officials had spoken with him just a couple days before and the artist was very cooperative, telling special agent Daniel Burke he knew his efforts were illegal but “I didn’t think this was that big of a deal.”



Kay told Burke he hadn’t opened any of the bottles or tampered with their contents, a fact later confirmed by Gatorade.



Kay has been charged with introducing misbranded food into interstate commerce, altering labels on food being held for sale after shipment in interstate commerce, and intent to cause injury to a business with misleading labeling on a consumer product which affects interstate commerce. Together, the charges could mean up to five years in prison and up to $450,000 in fines. 



”From the onset, our primary concern has been the safety of our customers,” said Gatorade spokeswoman Karen May, from the company’s office in Chicago.

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