Since there has been much discussion as to what is and isnt legal regarding civilian purchase of IR lasers, either second hand or not directly through a manufacturer,  I decided to send a note to the FDA to see what they had to say about it.

It has been my understanding that the FDA was only able to regulate sales by the manufacturers, and the manufacturers regulate their dealers to ensure their sales are only going to .mil or LEO, but if you found one for sale by an individual used or otherwise, there was no law preventing that type of sale.  

IMHO, this interpretation is supported by the fact that these lasers are being sold on eBay, the FDA is aware of it, but the have not instructed eBay to not allow these sales.  

Anyway, my questions and there responses are below.  Make your own judgment.  My interpretation of the current state of the law remains the same after reading their response.  This is basically a loophole, but the loophole is real....for now anyway.

[EDIT 4/13/12] :  Since I wrote this there have been numerous reports of people buying Mil / LE only laser via forums (like this one), ebay, etc and having them confiscated by DHS.   Bottom line, they feel they have legal authority to do this, they will come after you, and if you want to fight it in the courts, possibly after being arrested, be my guest.  

––––––––––––––––––––––––––––––

1st Email with their reponse below my questions:

On Jun 21, 2010, at 10:34 AM, Velez Cabassa, Aileen wrote:

Dear  Mr. XXXX:
This is in response to your email below to the Food and Drug Administration (FDA).   See below for the answer concerning the sale of IR lasers.


1.) Can an individual/consumer be prosecuted for buying an infrared laser?  

FDA may, through the U.S. Department of Justice (DOJ) file a civil complaint in U.S. District Court to restrain violations of the  prohibited  acts. In addition, FDA may seek to enjoin dealers and distributors of electronic products from disposing of or further distributing any products that fail to comply with performance standards. FDA is also granted authority to seek civil monetary penalties for certain violations. Civil monetary penalties can be as high as $300,000 for a related series of violations.


2.) Is it illegal for an individual/consumer possess an IR laser?  

It depends on the type of product.   If the laser is a medical device it will need to meet its regulatory requirements.  For example, if its a device that requires a prescription you will need to have one prior to purchasing.  And if the IR is classified as a class IIIb or class IV light show device you will need to have a current approved variance by the FDA.

3.) Is it illegal for an individual/consumer use/operate an IR laser?  (Assume they are doing so only in a safe and responsible manner.)  

The FDA regulates the manufacturing of the device  and in some cases  its use.  The purpose of FDA's regulation of radiation emitting products is to prevent unnecessary radiation exposure when using and operating such products. The  distribution and use of the IR laser is  regulated  at the State level.  You will need to contact your local State  radiation-control Agency for the specific requirements.  
An example of when the FDA would regulate the use of IR is when for Class IIIb and class IV laser light show projectors, identified as such on the label .  These  may only be sold by or to individuals or firms with current, approved laser light show variances from FDA.  Another example is a laser product that  is  advertised as uncertified component .  These  may only be sold to other manufacturers and may not be sold to the public for general use.  

Please feel free to contact me if you need any further assistance.


Aileen I. Velez Cabassa, M.S.
Consumer Safety Officer
Division of Small Manufacturers, International and Consumer Assistance (DSMICA)
Center for Devices and Radiological Health (CDRH)
U.S. Food and Drug Administration (FDA)
Telephone: 800.638.2041
Fax 301 847-8149
[email protected]


This response represents to the best of my judgment how the device should be regulated, solely based upon a review of the information you have provided. This response is not a classification decision for your device and does not constitute FDA clearance or approval for commercial distribution. Unless exempt from premarket notification submission (510(k)) requirements, the official classification for your device will appear on the final decision letter from any premarket review. All device types classified as exempt from the 510(k) requirements are subject to the limitations of exemptions. Limitations of device exemptions are found in the device classification chapters in 21 CFR xxx.9, where xxx refers to Parts 862-892 (e.g., 862.9, 864.9, etc.). Please be aware, if I have indicated that I believe your device falls within a device category classified as exempt from premarket review requirements, that it is your responsibility to ensure that you meet the exemption criteria and your device does not exceed the limitations of exemption. If your device exceeds the limitations of exemption, you must submit a 510(k) and receive a letter from FDA stating that your device may be commercially distributed in the U.S. prior to marketing your device.

This communication is consistent with 21 CFR 10.85 (k) and constitutes an informal communication that represents my best judgment at this time but does not constitute an advisory opinion, does not necessarily represent the formal position of FDA, and does not bind or otherwise obligate or commit the agency to the views expressed.


SECOND EMAIL:

To: Velez Cabassa, Aileen
Subject: Re: 06-263 avc Laws relating to IR Lasers––Response 1

Thank you for your response Aileen.

I probably should have been more specific on the application.   I hunt Feral Hogs using night vision.  You cant use regular sighting devices with night vision.  One of the best solutions is an IR aiming laser.   The manufacturers restrict the sales of these devices to Military and Law Enforment per FDA rules for manufacturers of IR lasers.  It is my understanding that they are restricted, not because of their power, but because they can do damage to your eyes without you being aware of it since the beam is invisible w/o night  vision.

Anyway, they do come up for sale periodically on ebay.   They are often used, but occasionally new ones too.   I would like to buy one for the application above.  I have been told by various individuals on the internet, that it is OK to buy one second hand in this manner.   That while it may not be the intent of the law, that it is not technically illegal based on the letter of the law.

Here is an example of an IR laser aiming product:   http://www.insighttechgear.com/products-peq2a.htm

So that is what I'm trying to figure out.  

Thank you for your assistance.


SECOND RESPONSE

Good morning,

I wanted to let you know we are aware of the sale of these type of lasers and laser pointers and are investigating the situation.  As you know, these would still fall under 21 CFR 2040.11(b), limiting the output to 5 mW.  We have consumer articles on the FDA website warning customers that such purchases may be seized by Customs.

Our website discusses Internet sales here: http://www.fda.gov/Radiation-EmittingProducts/RadiationSafety/AlertsandNotices/ucm116534.htm and high power laser pointers here:  http://www.fda.gov/Radiation-EmittingProducts/RadiationEmittingProductsandProcedures/HomeBusinessandEntertainment/LaserProductsandInstruments/ucm116373.htm

Bests!
Aileen I. Velez Cabassa, M.S.
Consumer Safety Officer
Division of Small Manufacturers, International and Consumer Assistance (DSMICA)
Center for Devices and Radiological Health (CDRH)
U.S. Food and Drug Administration (FDA)
Telephone: 800.638.2041
Fax 301 847-8149
[email protected]

This response represents to the best of my judgment how the device should be regulated, solely based upon a review of the information you have provided. This response is not a classification decision for your device and does not constitute FDA clearance or approval for commercial distribution. Unless exempt from premarket notification submission (510(k)) requirements, the official classification for your device will appear on the final decision letter from any premarket review. All device types classified as exempt from the 510(k) requirements are subject to the limitations of exemptions. Limitations of device exemptions are found in the device classification chapters in 21 CFR xxx.9, where xxx refers to Parts 862-892 (e.g., 862.9, 864.9, etc.). Please be aware, if I have indicated that I believe your device falls within a device category classified as exempt from premarket review requirements, that it is your responsibility to ensure that you meet the exemption criteria and your device does not exceed the limitations of exemption. If your device exceeds the limitations of exemption, you must submit a 510(k) and receive a letter from FDA stating that your device may be commercially distributed in the U.S. prior to marketing your device.

This communication is consistent with 21 CFR 10.85 (k) and constitutes an informal communication that represents my best judgment at this time but does not constitute an advisory opinion, does not necessarily represent the formal position of FDA, and does not bind or otherwise obligate or commit the agency to the views expressed.

You can now follow CDRH on Twitter at http://twitter.com/FDAcdrhIndustry

So in essence, laser device possession is not under their purview unless they exceed 5mW?  And laser devices in the IR spectrum are regulated only at the manufacturer and dealer level?  

 

Wish there was some way to get a variance on this law. Wonder if it could be challenged in court as an infringement on the 2nd amendment as it relates to arms. Seems like IR lasers have become important to warfighting on the individual soldier level and could be considered to be "arms".

What is the rule on LEO or .mil buying them?  IF someone is active duty mil, can they buy one?  or does it have to be purchased via thier official procurement department?  If you are LEO, can you just fax a copy of your ID/badge or whatever and order yourself, or do you have to have your department put in the order?  If I had a friend who was active duty militaty or LEO and they came across some extra money, could they purchase an Insight ILWLP / LAM-1000 and possibly let me borrow it every now and then?

my grandpa used to say "be careful picking scabs, sometimes they bleed."

time to stock up on ir laser modules.

So i better be getting my ducks in a row i guess, sounds like getting my peq 15 is harder than purchasing a damn machine gun.

Sometimes it is better not to poke the bear.

Writing letters to the FDA could turn out as bad as writing them to the ATF

I'm more confused than before I started reading this thread, I'm afraid.



It seems that more and more in this country that something is "legal" or "illegal" based upon how good your lawyer is, and what kind of mood whichever government lawyer is in that particular day.

That helped tremendously.  Not the answer I was hoping for, but very helpful

Is there any limit to how far the government can stick it's hand down our throats? Good Lord, we can't even own a stupid laser in this country without being a criminal. What yahoo decided IR lasers needed to be controlled?

Some pretty useful info there for someone who is trying to accquire a PEQ-15, thanks.

The one that realized doing permanent damage to an individual's eye without them knowing was a bad idea?



 

Are you talking about some idiot doing it to himself or to another?

If done to another, we already have laws for that.

If you are talking about some idiot doing it to himself, what we really need to do is to have their reproductive organs disconnected so that they do not pass on their stupid genes to offspring. Thus further cleansing the gene pool.

'We already have laws for that' is the stupidest come-back ever.



The 'laws for that' don't do anything to prevent the damage, they only allow you to seek compensation (from money that the other party doesn't have) though a long and drawn out process, for an irreparable injury.



The fact is, it makes sense to control and license certain things that are NOT guns.
 

Controlling the sale of such a device makes perfect sense, however I am not saying it should be illegal to buy on the open market.  



A kid picks up a laser pointer and the first thing he wants to do is look at it then points it at someone to irritate them.  What happens when someone does this and the recipient doesn't know that this is happening?



Maybe we should all be conceived with an intrinsic knowledge of all things man-made, much like Mr. Boyer, but until then some items shouldn't be sold without qualification.
 

I'm of the oppinion that IR lasers fall under the category of "arms".

If someone's buying a $2000 IR laser, they tend to be very aware of what it is they're buying and the damage it's capable of.
Maybe there should be some sort of qualification or whatnot, but the government has no right to restrict it to their employees only. Maybe every retailer that sells one should be required to inform you of the fact you can cook an eyeball almost instantly when selling one, similar to getting all the literature when buying a handgun. I couldn't tell you what should be done, I just believe it's morally wrong when looked at throught the lense of the 2nd ammendment.

Like bicycles, matches, knives, drain cleaner, bleach, or the thousands of products available on the open market, that when used improperly are potentially far more dangerous?

Help me understand again, why is it that we need the government protecting stupid people from themselves?

Oh look, Dave_A once again supporting the government nannying us to death for 'our safety' sure glad we have freedom to be controlled here lest I hurt myself

Looks like I better buy a PEQ 'because I can' while I can, frankly I see no reason armed citizens shouldnt have them

If you fall off a bike it hurts.  If you drink bleach it tastes bad.  If you shoot a gun you can feel it. If you paint something with an IR laser it would be easy to assume that nothing is happening.  See the difference?  It's not about me being protected from me-  it's about the same as a gun lock.  Since I have the key/combo I can do what I want with it while it still provides protection against use by uninformed individuals.  With the public's general ignorance towards LASERs one that isn't directly visible could cause some serious issues.

Not saying it should be regulated, but it makes sense to at least forewarn people.

Of course it makes sense to educate people on the dangers of lasers..

it does not make sense to ban sales of something because it's dangerous though.

The arguments for restricting laser ownership, or supporting FDA restrictions are as blasphemous as the ones against gun ownership.. Yes you can hurt/blind someone if you aren't careful with a laser. You can kill someone if you aren't careful with a gun, car, gas powered model plane, sword, gas powered grill, lawn mower, you name it... Education on safety with dangerous instruments and at the very most an age restriction for purchase is what makes sense..

Thanks for the research, the FDA is overstepping their boundaries though, like any govt agency.

I think the obvious ( or at least it should be ) difference is that most can put a connection between sticking your finger in a prop rotating at 12k rpm and pain/blood/dismemberment, I don't think most people make that association with light beyond the visible spectrum.





 

It doesn't matter if most people get how dangerous it is.. I have friends in .mil and in law enforcement that shouldn't have a fork let alone a laser aiming device.. In this country there should be no such restrictions on the books, period.

I agree 100 percent!! The restrictions in this country are ridiculous, its not the govs job to babysit us Period.

Yes, but if they are not regulated, then any idiot can buy one for $25 and instead of mittens just going crazy chasing a green laser up the wall, mittens goes blind.
 

Yes, thanks for the info on this.  
My understanding is that if you bought it second hand and it breaks than you are SOL which I can live with.

One alternative to commercial IR lasers is to buy a 532nm green laser and remove the small filters at the end. There are 2:
The first one converts an 808nm Laser (IR) to 1064nm and the second one converts the 1064nm to 532nm (Green)
There are many postings / forums with articles on how to do this with laser pointers on the net.
The concept is the same as the small pointers, just get a diode pumped 532mn green laser weapon sight and if you're a DIY kind of guy and don't mind taking things apart - Go for it!

The same can be said about anything else.

You cannot regulate America to protect people from the idiots.

Accidents and negligence happen with absolutely everything you can imagine..

People have put their animals into ovens or microwaves to dry them off after being wet for Goodness' sake
Regulation is the lazy solution, education and punishment for negligence is the right way.

couldn't have said it better myself!!

With that all being said....so why do the sell the IR versions online here?  

http://www.bhphotovideo.com/c/buy/Laser-Designators/pn/3/ci/9809/N/4294541779+4291325979

For some reason it doesn't say LEO and MIL only. I know in the past it has, and I guarantee if you try to order one they won't sell to you.

If you click the "Features" tab, it will tell you in bold that it's only available to LEO/MIL

IMHO IR equipment is the responsablity of the owner. I have one and never point it at anybody. I'm retired military, not LE and I bought mine legaly with a reciept. What I do with it is my business. If the goverment is concerned about IR use then please show me a incident in which regulation of IR equipment is justified. Good luck with that.

The only people that use this equipment are trained professionals. It's kinda hard for the local Gangster to walk into 7/11 with NVG's and a evil IR laser. And if the Fish & Game find you using NVG's, the IR laser will be the least of your worries. As for the negligent discharge of IR lasers, Hmm I seem to remenber MILES gear using IR lasers.

Well if evil IR equipment scares people, I will just get the proper paperwork like I did for my suppressors and short barrels rifles.

And what proper paperwork is that?

On the side of an ATILLA-200 it says that the product has been exempted from FDA performance standards, so doesn't that mean that the FDA cannot take action against someone from owning one?  It would seem that said regulations would no longer apply to a product that has been exempted, am I missing something?  So long as one can provide proof that the unit was purchased through legal channels, why/how would this be illegal or acting in contravention with federal regulations?

There is nothing "stupid" about that response...you can't prevent someone from doing anything with laws.  We have laws against murder but you can't "prevent" it from occurring, if someone is set on what their actions will be.  The Gov't spends every waking moment trying to "prevent" things and these laws just lead to more unintended consequences.  The only thing Gov't can actually do(properly anyway) is protect individual rights...and that means that along the way it CANNOT violate another individuals rights!  That is a key distinction and a MAJOR difference in terms of what actions should or should not be taken by a Gov't within a republic.  Individual rights are just that, mine end at the tip of your nose, the second I cross that line I lose my rights(even if only temporarily) and am to be held accountable for violating yours.  However, until then there shouldn't be any laws trying to "prevent" anything...unless you want to live in Minority Report.  Otherwise we'll eventually get to a point where the Gov't could outlaw cars because I may decide to drive around running people over and they need to prevent that from occurring as well!

Who does mittens belong to?  If it is their own "pet" then it would not serve their own rational self-interest to do that to mittens.  They would harm their beloved pet, have to spend money at the veterinarians office spend the rest of mittens life caring for a blind pet.  So even if the device cost .99 their own rational self-interest would tell them it is unwise to take the above action.  If mittens belongs to someone else then there is a violation of property rights and the owner could press charges for damages.

Now if you're going to say that there are some people that are just too stupid, then I would tell you that no one can protect someone else from themselves...and you definitely can't make laws to do so.  It's illegal to commit suicide and people do it every day.  In the end there is no such thing as 100% safety and the Gov't should not be able to violate an individuals rights.  Which is exactly what they do every time they make these kinds of ridiculous laws.

Really, you're that big of a push over... Sheeple



I've read RenegadeX's posts around here for years, I'd assume he is being sarcastic b/c most antigun loons will also make the same stupid argument about firearms.

This is an awesome argument for a pointless use of taxpayer money.  I can be Joe smow, convicted felon, illegal immigrant who has had 20 cervesas and buy a car for a fraction of the cost. If I press the peddle on the right really hard I can run over countless people before they even know. And when I am arrested I will get off on a technicality. The cop who arrested me will get sued because he didn't read me my rights in my native language and jailed for asking I am living in this country legally.

Like I have said before this law is jacked up and those who refuse to sell these to those who defend freedom should be ashamed.

/edit - sorry for rant get some anger management issues when dealing with stupid laws.


And vic I understand this is insight not you. This is why I done buy their products.

You cant blame Insight their hands are tied blame the FDA

Because if stupid people were allowed to continue unassisted, then natural selection would take over and the liberal/progressives would loose their power base.

I saw an article in the Houston paper yesterday that caught my eye. It may be a bit of a tangent from the original post, but is interesting and "illuminating" regarding acquisition of lasers.
The LEO in question acquired the lasers and sold/traded them to a dealer.  The LEO was convicted of conspiring to buy the restricted items (lasers).
Officer convicted in firearms, mail fraud case

The story leaves out quite a bit but you can see the basic point.....don't get yourself and your Police chief buddy in deep trouble by getting his department to buy your PEQ-15.

Still confused. I understand that if an IR laser disappeared off the Army's books and ended up stateside it's illegal. No crap. Here's a hypothetical situation that is kicking around in my head:

An Atilla-200 that was owned by DoD and destroyed in Iraq makes its way to a DRMO stateside and is sold to an individual. Whoops! This HAS happened before, like the guy who bought an stripped jet airframe that was not de-milled.

Broke Atilla is repaired using common off the shelf parts and restored to it's former glory.

- Owner of Atilla is not breaking the law by owning said 150mW laser?
- Owner of Atilla is not breaking the law by turning the laser on and using it to hunt feral hogs in a reasonably safe manner?

Now the owner is bored and wants to buy a different gun and has no need for the Atilla. He can't sell it to another individual?

The FDA website is more confusing and says an individual shouldn't buy one, it may be seized by customs. It never says anything about private ownership being illegal.

No lawyers in here?

Re-Posting here because I mistakenly posted in the new civi legal IR thread.
––-



Well, not exactly (I understand Viktor may be simplifying things for us because the explanation is long).  The energy and power limits appear to be wavelength and exposure-time dependent.  As far as designating them "medical lasers," I cannot find anything in the relevant section of the Code of Federal Regulations regarding this common belief.  As far as I can tell, the only special treatment they [medical lasers] get is an exemption from some of the safety labeling requirements.  

Regarding the complaint that these new lasers are only 0.07 mW specifically, and power limits generally, readers can look at 21 CFR 1040.10 here: http://www.accessdata.fda.gov/scripts/cdrh/cfdocs/cfcfr/CFRSearch.cfm?FR=1040.10 .  Based on my calculations, if we take potential time of exposure (t) to be a huge number ( > 10,000) seconds , the class I limit for an IR laser at 835nm (what the first post said these are) is in fact about 0.07 mW (I got 0.07132 mW from table I and table IV at the link).  This means they wouldn't be able to jack up the power any more, I  think, unless there were a timer-turnoff feature (<= 10 seconds exposure would bring the class I power limit up,  I think, but I cleared my calculator already).

Finally, as far as sales of class IIIb lasers, I believe this is strictly a manufacturer decision*, as I could not find anything in 21 CFR 1040.10 or 21 CFR 1040.11 restricting sales of any class of laser product to any specific person.  Someone please correct me if I am wrong.  


*see my post below regarding variance from director of FDA

She obviously did not click on your link and look in to the matter.  These commercial units are NOT class 3a, and have power higher than 5mW.  They may have a variance from the director.  This variance may be what limits them to sell to mil and domestic law enforcement.  I would like to know, though, the real story instead of just having to speculate and have to listen to misinformation (or spread it myself unintentionally!)

Maybe Vic could answer this. I was browsing the TNVC site, and looking at the specs for the LPI. It's a CIII unit, but the outputs are listed as:
Low: 0.005mm, High: 0.1mw. Wouldn't this make this a CI laser and available for civi sales?