Federal Procurement And PFAS: Important Recent Developments – Government, Public Sector

In recent months, the Biden Administration has taken noteworthy
steps to use the federal government’s vast purchasing power to
shift markets away from products containing perfluoroalkyl and
polyfluoroalkyl substances (PFAS). These changes to federal
procurement guidance and polices can have an impact on entities
that provide goods and services to the government, as well as on
markets more broadly.

In December 2021, the White House published a memorandum in connection with President
Biden’s Executive Order on Catalyzing Clean Energy
Industries and Jobs Through Federal Sustainability. The
memorandum noted the executive order’s requirements for
sustainable acquisition and procurement, including
“purchasing, to the maximum extent practicable and after
meeting statutory mandates, sustainable products and services
identified or recommended by EPA.” The memorandum also exhorts
agencies to “prioritize substitutes for products that contain
[PFAS].” Moreover, agencies should avoid the procurement of
“PFAS-containing covered items.” Such items include
PFAS-containing nonstick cookware or cooking utensils and
upholstered furniture, carpets, and rugs that have been treated
with stain-resistant coatings. (These “covered item”
restrictions build on the National Defense Authorization Act for Fiscal Year
2021, which, starting in April 2023, will prohibit the U.S.
Department of Defense from procuring such items if they contain
perfluorooctane sulfonate (PFOS) or perfluorooctanoic acid (PFOA).)
In December, the White House also issued a Federal Sustainability Plan that included
prioritization of the purchase of “sustainable products”
(including products without added PFAS) as one of its
“principles and goals.”

Because the White House guidance encourages the acquisition of
products “identified or recommended” by EPA, the
Agency’s recommendations will have considerable importance in
federal procurement efforts. To this end, EPA recently published
a webpage that compiles how private sector
standards and ecolabels in EPA’s “Recommendations of Specifications, Standards, and
Ecolabels for Federal Purchasing” specifically address
PFAS in various product categories. The Recommendations—first
published in 2015—identify private sector environmental
performance standards or ecolabels that “most effectively
address the environmental impacts of products and service and are
verified to be appropriate for federal procurement.” The
current version of the recommendations includes
40 standards and ecolabels in 25 purchase categories for cafeteria,
construction, custodial, electronics, grounds/landscaping, machine
shop operations, and office furniture products.

The Agency has a page within its “Sustainable
Marketplace” webpages for identifying “Greener Products
and Services.” There, one can locate the new PFAS webpage which lists nine
standards or ecolabels from the Recommendations that include
criteria specifically focused on PFAS content. The product
categories covered by the PFAS-related standards include carpet,
flooring, furniture, interior latex paint, take-out service items,
trash bags, adhesives, and certain construction materials. While
the criteria in some of these standards pertain only to PFOS or
PFOA, the certification criteria for at least five of the standards
restrict a broader array of PFAS.

EPA plans to expand the Recommendations, and chemical substances
including PFAS are likely to be an ongoing area of focus. When
EPA announced the PFAS webpage in February
2022, the Agency also released an updated “Framework for the Assessment of Environmental
Performance Standards and Ecolabels for Federal
Purchasing.” This is the tool that EPA uses to assess the
marketplace of more than 460 private sector standards and ecolabels
to determine which to include in the Recommendations. Among the
updates to the Framework that EPA highlighted were changing the
Framework’s “Reducing toxicological hazards” and
“Disclosures of chemical substances of concern” criteria
from a “Leadership” criterion (i.e., applicants are
“encouraged” to respond) to a “Baseline”
criterion (i.e., applicants must meet the criteria), depending on
whether chemicals of concern are a “key hotspot” for the
purchase category. The “Reducing toxicological hazards”
criterion involves “substitution of chemicals of concern for
safer alternatives; reduction or elimination of chemical
substance(s) of concern; or alternative design approaches.”
The “Disclosure of chemical substances of concern”
requires “public disclosure of all intentionally
added chemical substances of concern present in each homogenous
material in the final product at 100 parts per million (0.01%) or
greater.” (“Chemical substances of concern”
includes, among other substances, all the substances on EPA’s
Toxics Release Inventory list, which includes a number of PFAS.)
These changes reflect an enhanced focus on chemical substances in
the Framework and ultimately in the Recommendations. And as the
Recommendations evolve, so will the federal government’s $650
billion in annual spending on products and services.

Entities that provide products and services to the US
government, or are considering doing so, should consider
participating in an upcoming EPA public webinar on March 2, at 2:00 pm during
which it will provide more information on its plans.

*Margaret Barry contributed to this post.

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