Yep if they want you they will get you with any law or alphabet agency regulation that carries the weight of law so if the FDA wants to call your portable a pointer they will and it's on your back to pay in time and money to fight it where the likely outcome would fall back on your intent, if a manufacture or distributor looking to circumvent US safety regs. you likely lose, a hobbyist would likely get a warning 1st before being charged but with the Orwellian nightmare at hand this very conversation could be used against your ignorance plea, so if the seller was unloading a one piece that sorta falls between the cracks it could well be overlooked but try to sell again and again and you will have trouble unless your portable has the 5 required safeties of aperture shutter, safety dongle, delayed on, indicator light, and keyed switch which could have changed for all I know and probably will as everything becomes more difficult with a blue zillion new laws every day.........but I digress, truth is we know that proper laser safety can be absent from the mind of a novice so it's really your duty to NOT sell anything over 5mw on cragislist, besides you don't want some kid to get disabled for life so just tell your friend not to sell anything over the limit because he could and probably would .....maybe even should have trouble.
p.s. Don't fall into the trap of believing that just because you have gotten away with something that you always will, in time disaster will fall, maybe even after you have been warned and stopped trouble can still come, reduce your risks by stopping now.