§ 812.2 Applicability. ( a ) *General.* This part applies to all clinical investigations of devices to determine safety and effectiveness, except as provided in paragraph (c) of this section.
( b ) *Abbreviated requirements.* The following categories of investigations are considered to have approved applications for IDE's, unless FDA has notified a sponsor under § 812.20(a) that approval of an application is required: ( 1 ) An investigation of a device other than a significant risk device, if the device is not a banned device and the sponsor: ( i ) Labels the device in accordance with § 812.5;
( ii ) Obtains IRB approval of the investigation after presenting the reviewing IRB with a brief explanation of why the device is not a significant risk device, and maintains such approval;
( iii ) Ensures that each investigator participating in an investigation of the device obtains from each subject under the investigator's care, informed consent in accordance with part 50 of this chapter.
( iv ) Complies with the requirements of § 812.46 with respect to monitoring investigations;
( v ) Maintains the records required under § 812.140(b) (4) and (5) and makes the reports required under § 812.150(b) (1) through (3) and (5) through (10);
( vi ) Ensures that participating investigators maintain the records required by § 812.140(a)(3)(i) and make the reports required under § 812.150(a) (1), (2), (5), and (7); and
( vii ) Complies with the prohibitions in § 812.7 against promotion and other practices.
( 2 ) An investigation of a device other than one subject to paragraph (e) of this section, if the investigation was begun on or before July 16, 1980, and to be completed, and is completed, on or before January 19, 1981.
( c ) *Exempted investigations.* This part, with the exception of § 812.119, does not apply to investigations of the following categories of devices: ( 1 ) A device, other than a transitional device, in commercial distribution immediately before May 28, 1976, when used or investigated in accordance with the indications in labeling in effect at that time.
( 2 ) A device, other than a transitional device, introduced into commercial distribution on or after May 28, 1976, that FDA has determined to be substantially equivalent to a device in commercial distribution immediately before May 28, 1976, and that is used or investigated in accordance with the indications in the labeling FDA reviewed under subpart E of part 807 in determining substantial equivalence.
( 3 ) A diagnostic device, if the sponsor complies with applicable requirements in § 809.10(c) and if the testing: ( i ) Is noninvasive,
( ii ) Does not require an invasive sampling procedure that presents significant risk,
( iii ) Does not by design or intention introduce energy into a subject, and
( iv ) Is not used as a diagnostic procedure without confirmation of the diagnosis by another, medically established diagnostic product or procedure.
( 4 ) A device undergoing consumer preference testing, testing of a modification, or testing of a combination of two or more devices in commercial distribution, if the testing is not for the purpose of determining safety or effectiveness and does not put subjects at risk.
( 5 ) A device intended solely for veterinary use.
( 6 ) A device shipped solely for research on or with laboratory animals and labeled in accordance with § 812.5(c).
( 7 ) A custom device as defined in § 812.3(b), unless the device is being used to determine safety or effectiveness for commercial distribution.
( d ) *Limit on certain exemptions.* In the case of class II or class III device described in paragraph (c)(1) or (2) of this section, this part applies beginning on the date stipulated in an FDA regulation or order that calls for the submission of premarket approval applications for an unapproved class III device, or establishes a performance standard for a class II device.
( e ) *Investigations subject to IND's.* A sponsor that, on July 16, 1980, has an effective investigational new drug application (IND) for an investigation of a device shall continue to comply with the requirements of part 312 until 90 days after that date. To continue the investigation after that date, a sponsor shall comply with paragraph (b)(1) of this section, if the device is not a significant risk device, or shall have obtained FDA approval under § 812.30 of an IDE application for the investigation of the device.
[45 FR 3751, Jan. 18, 1980, as amended at 46 FR 8956, Jan. 27, 1981; 46 FR 14340, Feb. 27, 1981; 53 FR 11252, Apr. 6, 1988; 62 FR 4165, Jan. 29, 1997; 62 FR 12096, Mar. 14, 1997; 88 FR 88249, Dec. 21, 2023]