Six companies sued for unlawful use of patented packaging

Fresh fruits and vegetables are becoming more popular as many attempt to adopt healthy lifestyles, but this means shelf life is a concern as fresh produce can become inedible very quickly. The development of new and innovative packaging can extend the shelf life of fresh produce, but this makes it a very competitive area in the food packaging industry.

The problem arises when the technology or ideas are stolen from other companies, which Windham Packaging LLC claimed was the case when it recently filed a lawsuit against six companies. Windham seeks to sue B&G, Alpine Fresh, Landec Corp.’s Apio unit, McCall Farms’ Glory Foods, Mann Packing Co. and Taylor Farms California for using its microperforated packaging — which contains small holes — without paying for it. This technology extends shelf life without the use of preservatives, which makes it a more attractive solution to health-conscious consumers.

Windham developed bags that regulate the flow of oxygen and carbon dioxide in and out of the container, known as modified atmosphere packaging. The breathable solution maintains the freshness of produce for longer and was patented by Windham in 2006, according to the company.

This formed the basis of its argument when Windham approached the US International Trade Commission — which directs action against unfair trade practices in the US — and asked the commission to stop imported produce that uses the packaging it developed.

Bloomberg cited statistics from the USDA that show the share of vegetables imported into the US has increased significantly, rising from 9% in 1996 to 23% in 2016. With the import and export of fresh produce expected to grow in coming years, the company’s complaint has gained attention. Using packaging such as Windham’s is becoming more and more critical to maintaining freshness and ensuring food safety, especially if food is travelling long distances.

Windham claimed the lawsuit is only applicable to certain products, including B&G’s Green Giant Fresh broccoli and cauliflower from Canada, Mexico and Peru, and Apio’s Eat Smart and Greenline beans from Guatemala. The company also suggested that it would be open to the country continuing to import fresh products that use other packaging solutions.

However, B&G believes it was falsely named in the lawsuit, and claimed it does not make or sell the Green Giant Fresh products in question. It stated that it is working to resolve the issue.

“B&G Foods licenses the Green Giant Fresh name to a third-party fresh produce company that operates the fresh produce portion of the Green Giant business,” the company told Bloomberg. “We are working with our licensing partner to review the complaint.”

It is not unusual for lawsuits to occur in the food industry, but many complaints do not make it to court. Windham’s complaint will be reviewed by the commission, along with any public interest statements, before an outcome is announced in about four weeks. If the commission proceeds with an investigation, the trial would take place in about nine months.