As is obvious from an affidavit by special agent Daniel Burke obtained by The Smoking Gun, Kay didn't approach this project as a master criminal. Note that he put his e-mail address on the labels, and responded to an inquiry from Burke asking where he could buy a bottle by boasting that he was "re-merchandising" the stuff, and planned to put some on eBay. His sale price: six bottles for $12.
It gets better. Burke testifies that Kay contacted Pepsi, Gatorade's parent company, with what he clearly thought was the deal of the century. He wrote:
I represent the artist doing the "UNFAITHFUL" pop art label in the Greater Denver Area. He's been buying the 1 QT 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! People are making contact trying to buy directly from the artist but he is not interested in selling directly to individual collector.The entire production is performance art at its finest!
The artist's personal aim is to get his work out into the public in a unique way and hopefully get people thinking and talking. The artist is interested in continuing to generate this buzz anonymously. Gatorade can participate unofficially (while denying this connection) by providing support to the artist for travel and per diem in various cities. Your product will sell and generate more demand for Gatorade. Two days are needed in each target city. Cities may be chosen by Gatorade to boost sales. This is the cheapest marketing campaign you could ever participate in. It is good for Gatorade and good for art.
As an example, the artist will wear a Gatorade t-shirt and act like a Gatorade employee. He will exchange 24 of his labeled bottles for 24 on the store's shelf. He will relabel those and do it again at the next store.
I assure you that the contents of each bottle remain safe and sealed and ready for consumption (or collecting) by the final consumer.
Contact me via this email address or call 303-709-____
Thank you for your time,
Jason Kay
That anonymous artist? Kay later told Burke he'd acted alone -- which made it even more artistic! Nonetheless, he's been charged with felony and misdemeanor counts relating to "the introduction or delivery for introduction into interstate commerce of any food that is adulterated or misbranded," "the alteration, mutilation, destruction, obliteration, or removal of the whole or any part of the labeling of, or the doing of any other act with respect to a food, if such act is done while such article is held for sale," and "tainting a consumer product or rendering materially false or misleading the labeling of, or container for, a consumer product which affects interstate or foreign commerce... with the intent to cause serious injury to the business of any person."
Seemed like a good idea at the time...
