Jason Kay's "Unfaithful" Gatorade stunt a lot less profitable than he thought

Longmont's Jason Kay thought relabeling Gatorade bottles with a photo of Tiger Woods and his wife Elin and the word "Unfaithful" was such a great idea that he even suggested that Pepsi, Gatorade's parent company, finance his art project.

Even though the gag made worldwide headlines, Pepsi execs didn't see this as a good investment -- and in February, Kay was charged with one count of adulteration and removal of the labeling of a food while held for sale. Today, he was sentenced to two-years probation and a $1,000 fine.

The latest release about Kay from the U.S. Attorneys Office makes no mention about whether this stunt was funny or not. Instead, it touches on how Kay's label-switching made it seem as if a certain Gatorade product contained Vitamin C when it doesn't. He's lucky he didn't receive the death penalty for that. Get more details below:


DENVER -- Jason Eric Kay, age 38, of Longmont, Colorado, was sentenced this morning by U.S. Magistrate Judge Kristen L. Mix to serve 2 years probation and pay a $1,000 fine for adulteration and removal of a label of food while held for sale, the U.S. Attorney's Office and the Food and Drug Administration Office of Criminal Investigations (FDA OCI) announced. Kay has been free on a personal recognizance bond.

Jason Eric Kay was first charged by Criminal Complaint on January 12, 2010. On February 9, 2010, the government filed an Information, charging Kay with the adulteration and removal of a label of food while held for sale, a misdemeanor. Kay pled guilty to that charge on February 19, 2010. He was sentenced today, May 3, 2010.

According to the stipulated facts contained in the plea agreement, beginning in January 2010, Kay made at least 11 separate purchases of various Gatorade products from Safeway and King Soopers stores removing the labels from those products. Kay took the products home, manufactured or produced new false labels, and then took the product back to the stores, placing it back on shelves for sale to consumers.

Further, Kay made labels for Gatorade A.M. Tropical-Mango flavored products, but placed the labels on bottles that were not Gatorade A.M. Tropical-Mango flavored products, but were, in fact, Gatorade Thirst Quencher Orange flavor. Additionally, the Gatorade A.M. labels that the defendant placed on the bottles of Gatorade Thirst Quencher Orange represented that the product contained Vitamin C, when, in fact, Gatorade Thirst Quencher Orange does not contain Vitamin C. The actions of the defendant caused the product to be misbranded.

The plea agreement further states that at least one consumer purchased a bottle at King Soopers believing the product to be Gatorade A.M. Tropical-Mango flavor which was, in fact, Gatorade Thirst Quencher Orange flavor. The consumer registered complaints with King Soopers as well as PepsiCo North America and received remuneration.

United States Attorney David Gaouette praised agents from the Food and Drug Administration Office of Criminal Investigations (FDA OCI) for their quick action, which led to Kay's arrest. U.S. Attorney Gaouette also said, "This case is a perfect example of how the public safety and health can be impacted by such conduct. The public needs to be confident that the product they purchase from a retailer is the same as when it left the manufacturer. Lastly, the prosecution should serve as a warning to others contemplating similar crimes to promote themselves not to do so at the expense of the public or the public's health."

This case was investigated by the FDA OCI.

The case was prosecuted by Assistant U.S. Attorney Jaime Pena.

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