¶ 3601
Overview
Scope of the chapter. This chapter examines the jurisdiction of the Commodity Futures Trading Commission over digital assets and the legislation that would enlarge it. It begins with the definition of "commodity" in the Commodity Exchange Act and the decisions that brought bitcoin and other tokens within it. It then treats the three layers of the Commission's authority as they apply to tokens: the anti-fraud and anti-manipulation power that reaches cash or spot transactions, the regime for leveraged, margined or financed retail commodity transactions with its exception for actual delivery, and the full regulatory framework for futures, options and swaps. It examines the enforcement record against offshore derivatives platforms and decentralized protocols, the change in agency program that began in 2025, and the market-structure bills that have passed the House of Representatives without becoming law. It closes with the allocation of authority between the Commission and the Securities and Exchange Commission and a checklist for counsel.
The central question. A lawyer advising a client who buys, sells, lends, lists or builds products on a token must answer two questions at the outset. The first is whether the token is a security, a question governed by the securities laws and examined in ch. 35. The second is which part of the Commodity Exchange Act applies to the transaction. The second question matters even when the first is answered in the negative, because a token that is not a security will usually be a commodity, and the Commodity Exchange Act regulates commodity transactions according to their form. A cash purchase of bitcoin for immediate delivery is subject only to the Commission's anti-fraud and anti-manipulation authority. The same purchase made with credit extended by the seller is regulated as if it were a futures contract unless the sale results in actual delivery of the bitcoin within 28 days. A contract that settles in cash by reference to the bitcoin price, with no fixed expiry, is a swap or a futures contract and may be offered to retail customers only on a registered exchange. The form of the transaction decides the regime.
Sources of law. The principal sources are the Commodity Exchange Act, 7 U.S.C. §§ 1 et seq., as amended by the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 and by section 17(f) of the GENIUS Act, Pub. L. No. 119-27, 139 Stat. 419 (2025); the Commission's regulations, in particular Regulation 180.1, 17 C.F.R. § 180.1; the Commission's interpretive statements and policy statements published in the Federal Register; the enforcement orders and consent orders through which the Commission stated most of its views on tokens before 2025; and three federal decisions that remain the leading authorities: CFTC v. McDonnell, 287 F. Supp. 3d 213 (E.D.N.Y. 2018); CFTC v. My Big Coin Pay, Inc., 334 F. Supp. 3d 492 (D. Mass. 2018); and CFTC v. Monex Credit Co., 931 F.3d 966 (9th Cir. 2019). The legislative materials are the Financial Innovation and Technology for the 21st Century Act, H.R. 4763, 118th Cong. (2024), and the Digital Asset Market Clarity Act, H.R. 3633, 119th Cong. (2025), together with the substitute reported by the Senate Committee on Banking, Housing, and Urban Affairs on June 1, 2026.
The law stated as of November 2026. The law in this area moved faster between January 2025 and November 2026 than in the preceding decade. In that period the Commission withdrew its 2020 interpretation of "actual delivery" for virtual currencies, approved the first listing of spot crypto asset contracts on a registered futures exchange, launched a pilot program for tokenized collateral, joined the Securities and Exchange Commission in an interpretive release classifying crypto assets, approved a perpetual contract on bitcoin as a futures contract, and published an advance notice of proposed rulemaking on a comprehensive framework for retail crypto asset transactions. Each of those steps is examined below from the Federal Register text or the Commission's own release. None of them is a statute. A later Commission may change any of them by the same procedure, and a court reviewing an enforcement action is not bound by an interpretive release. See ¶ 3660.10 infra.
The status of legislation. No federal market-structure statute for digital assets had been enacted as of November 2026. The House passed FIT21 on May 22, 2024 and the CLARITY Act on July 17, 2025. The Senate Banking Committee reported the CLARITY Act with an amendment in the nature of a substitute on June 1, 2026, and on September 15, 2026 the Senate declined, by a vote of 49 to 50, to invoke cloture on the motion to proceed to the bill. Congress.gov, Actions on H.R. 3633, 119th Cong. (Record Vote No. 234). The bills are examined at ¶ 3670 because they would reallocate authority over spot markets in digital commodities to the Commission, because counsel drafting long-term documents must anticipate them, and because the agencies have built parts of their 2026 program on the bills' concepts. They are described as bills. Nothing in this chapter treats a provision of either bill as law.
Relationship to other chapters. The characterization of tokens as property is treated in ch. 3. The technology of perpetual contracts, oracles and smart-contract custody is described in ch. 2. The securities analysis, including the joint interpretive release of March 2026 in its securities aspect, is in ch. 35. Payment stablecoins and the GENIUS Act are in ch. 37. The unwrapped DAO as a defendant, including the Ooki DAO litigation in its partnership aspect, is in ch. 19. Customer property in the insolvency of an exchange or futures commission merchant is in chs. 27 and 28. Anti-money-laundering obligations that the Commodity Exchange Act imposes on futures commission merchants are noted here and treated fully in ch. 33.
Plan of the chapter. ¶ 3610 examines the statutory definition of "commodity" and its application to tokens. ¶ 3620 treats the anti-fraud and anti-manipulation authority over spot transactions, with a case discussion of McDonnell. ¶ 3630 treats retail commodity transactions and actual delivery, with a case discussion of Monex. ¶ 3640 treats derivatives on tokens and the enforcement actions against offshore platforms. ¶ 3650 treats decentralized protocols, with a case discussion of the Opyn order. ¶ 3660 describes the 2025–2026 agency program. ¶ 3670 examines the market-structure bills. ¶ 3680 states the present allocation of authority between the two Commissions and the allocation the House bill would make. ¶ 3690 collects practice points and a checklist.