CFTC Chairman on US Crypto Regulation: We Have to Rely on 70-Year-Old Case Law to Determine What’s a Security or Commodity

The chairman of the Commodity Futures Trading Commission (CFTC) says his agency and the Securities and Exchange Commission (SEC) “have to rely on 70-year-old case law to determine what’s a security or a commodity.” He stressed that the SEC and CFTC are working together to regulate the crypto space, noting that “It’s not a turf war.”

Commodity Futures Trading Commission (CFTC) Chairman Rostin Behnam talked about cryptocurrency regulation in an interview with CNBC last week.

Responding to a question about whether the CFTC gets along with the Securities and Exchange Commission (SEC) and whether the two agencies share resources to regulate the crypto sector, he affirmed:

We do get along. We can share, we have shared, and we will share.

“For the CFTC, the difficulty is we are a derivatives regulator. We don’t oversee the cash markets. So, the authority that I’ve been asking Congress for is cash authorities, so that we can go in the bitcoin cash market, the ether cash market, and the other digital commodity token [markets],” the CFTC chief explained.

Commenting on SEC Chairman Gary Gensler stating that the majority of crypto tokens out there are securities, Behnam stated: “Well, we’re gonna have to figure that out legislatively because it’s a new asset class. There are different components and characteristics of this asset class as opposed to traditional asset classes.” The CFTC boss described:

We have to rely on 70-year-old case-law to determine what’s a security, what’s a commodity.

“We have one court case in New York that says bitcoin is a commodity … We’re trying to find a reasonable outcome that will create certainty for the market,” he concluded.

Behnam also stressed that “it’s not a turf war” between the two regulatory agencies.



SEC Chairman Gensler also previously said that the two regulators are working together to regulate the crypto sector. While Gensler admitted that bitcoin is a commodity, he said last month that “Of the nearly 10,000 tokens in the crypto market, I believe the vast majority are securities.”

Last month, the SEC announced that it is setting up a dedicated office to review crypto filings. Gensler also said that he has asked SEC staff to fine-tune crypto compliance.

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