Reed Smith Client Alerts

On July 6, 2022, the U.S. federal government’s General Services Administration (GSA) filed an advance notice of proposed rulemaking (ANPR) in the Federal Register seeking information from the public that will inform the agency as it proposes rule changes designed to limit GSA contractors’ use of plastic in both packaging and shipping, as well as other single-use plastics. Single-use plastics are defined by the ANPR as those that are used and then immediately disposed of once items are delivered. These changes are in support of GSA’s policy goals related to addressing sustainability in its acquisitions and, once implemented, are expected to have a significant impact on the federal supply chain, which includes manufacturers, distributors, and resellers. Through the ANPR, GSA is requesting stakeholder feedback from supply chain members as well as from local municipalities and communities that may be impacted by any potential rulemaking, including manufacturers, distributers, and resellers that offer products on a GSA schedule. GSA intends to use the feedback received in response to this ANPR to inform future rulemaking, which may establish requirements and reporting mechanisms for reducing “unnecessary single-use plastics.” In particular, GSA and Department of Veterans Affairs schedule holders are encouraged to respond to the ANPR and provide information regarding ways to reduce or eliminate single-use plastics, while minimizing or limiting the cost, logistical burden and liability risk of purchased goods being damaged if packaging is reduced or changed, as well as to express concerns or raise the challenges arising from potential prohibitions on the use of single-use plastics.

Motivation for GSA’s actions

GSA’s contemplated actions are intended to align with and support President Biden’s Executive Order on Tackling the Climate Crisis at Home and Abroad, E.O. 14008 (EO). The EO states that “it is the policy of [the Biden] Administration to lead the Nation’s effort to combat the climate crisis by example- specifically, by aligning the management of Federal procurement … and financial programs to support robust climate action.”

GSA has already taken internal policy steps toward using its significant buying power to advance the goals set forth by the EO. Specifically, GSA amended its Acquisition Manual (GSAM) in 2021 to require the consideration of content waste reduction as part of requirements planning for GSA acquisitions that require a written acquisition plan. It is GSA policy to consider supporting environmental objectives such as waste reduction, source reduction; increased material, energy, or water efficiency; or maximum practicable recovered material content. The GSAM goes on to provide that this may include considering waste reduction techniques and taking into account reduction in packaging, to include shipping packaging, when buying supplies.