Federal Procurement and PFAS: Important Recent Developments

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.

© Arnold & Porter Kaye Scholer LLP 2022 All Rights Reserved. This blog post is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.