ETH can be a security and a commodity

in crypto •  last year 

In the SEC’s push to rein in the crypto sector, one question looms large: Is ETH a security? Dan Berkovitz, a former CFTC commissioner and SEC general counsel, and Colin Lloyd, a partner at law firm Sullivan & Cromwell, assess the current state of the regulatory turf war in the U.S., shedding light on some of Washington’s unanswered questions.

This isn't the obvious silliness that a bag of sugar is both a commodity (the sugar) and a security (the bag, think wholesale).

The F in CFTC stands for Futures, and hence any derivative of a security is under the regulatory jurisdiction of both the SEC and CFTC.

This is why derivatives of BTC and ETH already exist, and are regulated, but only under the CFTC. This has really muddied the waters as both BTC and ETH are not defined as either securities or commodities - it is their derivatives contracts that are defined. There have existed some very esoteric derivatives contracts that are neither, such as futures in weather.

The SEC could clarify the situation by objecting to the ETH futures contract on CME - they have never done so.

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