January 13, 2010: Longmont Man Arrested for Removing and Replacing Labels on Gatorade Bottles

DENVER – Jason Eric Kay, age 38, of Longmont, Colorado, was arrested this afternoon without incident on charges of misbranding and altering food labels with intent to cause serious injury to the business of any person, the U.S. Attorney’s Office and the Food and Drug Administration Office of Criminal Investigations (FDA OCI) announced.  Kay will be held overnight in custody.  He will likely make his initial appearance in U.S. District Court in Denver tomorrow.

According to the affidavit in support of the Criminal Complaint, on January 8, 2010, FDA OCI was notified by PepsiCo North America that the company had received multiple complaints from the public involving the re-labeling/tampering of 1 quart Tropical-Mango Flavored Gatorade bottles.  The tampered bottles contained unauthorized labels depicting in part, a photograph of professional golfer Tiger Woods and his wife Elin Woods on one side, and the word “unfaithful” on the other side.  PepsiCo through its wholly owned subsidiary, manufactures Gatorade.  The company had not authorized the labeling of their product in this manner.  The company further advised that the bar code on the label was fully functional and none of the bottles appeared to have been opened.  Each bottle appeared to be individually numbered.  Bottles were removed by personnel at Safeway and King Soopers stores in Erie, Boulder, Broomfield and Longmont, Colorado.

“The consumer must have confidence that the labeling on the products they purchase has not been changed or altered in any way so that the information about the product is accurate,” said U.S. Attorney David Gaouette.  “Once a label is illegally changed, all of the information on that label is put into question.”

Kay is charged with:

1.                  The introduction or delivery for introduction into interstate commerce of any food that is adulterated or misbranded which carries a penalty of not more than 1 year incarceration and not more than a $100,000 fine.

2.                  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 food, if such act is done while such article is held for sale after shipment in interstate commerce and results in such article being adulterated or misbranded carries a penalty of not more than 1 year incarceration and not more than a $100,000 fine.

3.                  With intent to cause serious injury to the business of any person, 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, which carries a penalty of not more than 3 years’ incarceration, a not more than a $250,000 fine.

This case was investigated by the Food and Drug Administration Office of Criminal Investigations (FDA OCI).

The case is being prosecuted by Assistant U.S. Attorney Jaime Pena.

A Criminal Complaint is a probable cause charging document. Anyone accused of committing a federal felony crime has a Constitutional right to be indicted by a federal grand jury.

These charges are only allegations and the defendant is presumed innocent unless and until proven guilty.

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