Developer files U.S. complaint to halt use of its fresh-produce packaging

There’s a secret to how grocery stores keep fresh, ready-to-eat fruits and salads stocked all year round for busy Americans: It’s all in the packaging.

In this case, it’s packaging with tiny holes that can keep produce on store shelves longer. The broad use of the technology has made it valuable, which is why B&G Foods Inc., Landec Corp.’s Apio unit, Alpine Fresh Inc. and three other companies are being hauled before a U.S. trade agency over allegations that they used patented breathable packaging without paying for it.

Windham Packaging LLC, a closely held New Hampshire firm, filed a complaint last week with the U.S. International Trade Commission seeking to block imports of produce in the type of microperforated packaging it says it developed. The bags, known as modified atmosphere packaging, are tailored to control the flow of oxygen and carbon dioxide into and out of the containers to optimize freshness. “You have ready- to- eat, fresh produce that’s convenient to the customer, but now you have the challenge of extending shelf life,” said Kit Yam, a food science professor at Rutgers University. Using a microperforated package has become the dominant way of keeping ready-to-eat produce like lettuce or salads fresher in stores as it’s “one of the more natural ways to do this without preservatives.”

Windham was founded by former Hercules Inc. food scientist and packing specialist Elizabeth Marston to license her ideas for microperforated packaging. Her patent was issued in 2006.

As part of its complaint, Windham said it’s not trying to disrupt the distribution of fresh produce into the U.S. Only specific products would be affected, such as B&G’s Green Giant Fresh broccoli and cauliflower from Canada, Mexico and Peru or Apio’s Eat Smart and Greenline beans from Guatemala, and the companies could use other packaging, Windham said.

Packaging that can extend shelf life also is becoming more important as Americans’ food comes from farther away, and imports of produce steadily increase. The share of vegetables imported into the U.S. has nearly tripled in the past two decades, from 9 percent in 1996 to 23 percent in 2016, according to the U.S. Department of Agriculture.

According to the complaint, Windham has struck agreements with companies including Temkin International Inc., which touts the technology as part of its marketing efforts. In a statement, B&G said it doesn’t make or sell the Green Giant Fresh products named in the complaint and believes it’s been named in error.

“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 said. “We are working with our licensing partner to review the complaint.”

The other three companies named in the complaint are McCall Farms Inc.’s Glory

Foods, Mann Packing Co. and Taylor Farms California Inc. Officials with Landec and the other companies either had no immediate comment or couldn’t be reached.

The trade commission is responsible for protecting U.S. markets from unfair trade

practices, including unauthorized use of U.S. patents. It has the power to have products halted at the U.S. border.

The commission will review the filing, and any public interest statements that may be filed, and announce in about a month whether it will investigate the complaint. If so, a trial would occur in about nine months and a final decision would come in about 15 to 18 months.