Is Crypto a Security or Commodity? The debate continues into 2024

is crypto a security or commodity?

Short Answer:

So, is crypto a security or commodity? The truth is, that still seems to be subjective. The SEC sees cryptocurrencies as securities, necessitating regulatory compliance, while the CFTC classifies them as commodities, focusing on market fairness. This difference impacts regulatory frameworks and efforts are ongoing to clarify the oversight of both agencies.

Introduction & Background

As an attorney with over a decade of experience in venture capital, M&A, private equity, and securities transactions, particularly with AM Law 200 firm Locke Lord LLP, I have navigated the complex landscape of investment, finance, and regulatory compliance. This background provides me with a unique vantage point on the evolving world of cryptocurrencies, particularly in the context of their classification as securities or commodities. Understanding the intricate legal and regulatory frameworks that govern these digital assets is crucial for investors, entrepreneurs, and legal professionals alike, given their profound implications for compliance, investment strategy, and market dynamics.

The debate between the Securities and Exchange Commission (SEC) and the Commodity Futures Trading Commission (CFTC) over the classification of cryptocurrencies underscores the importance of clear legal definitions and regulatory guidelines in the digital economy. As someone who has taught Entrepreneurial Law classes at the University of Florida’s Fredric G. Levin College of Law, I have emphasized the significance of the Howey Test and the legal criteria it establishes for determining whether an asset can be considered a security. My experiences have equipped me with the insights to dissect these complex regulatory discussions, offering a nuanced perspective on the implications for digital asset markets and the broader implications for innovation and investor protection in the financial sector.

Key Takeaways

  • The SEC and CFTC have differing views on crypto classification, impacting the regulatory approach and legal requirements for issuing and trading crypto assets.
  • The Howey Test is central to determining if cryptocurrencies qualify as securities, with factors such as investment of money, common enterprise, expectation of profit, and reliance on efforts of others being critical in this evaluation.
  • Legislative and regulatory efforts are ongoing to define the oversight roles of the SEC and CFTC more clearly, aiming to balance innovation with investor protection and address the governance of DAOs and the treatment of assets like Bitcoin and Ethereum.

Exploring the Crypto Classification Conundrum

Cryptocurrency market activity

In the U.S., the Securities and Exchange Commission (SEC) generally views cryptocurrencies as securities, while the Commodity Futures Trading Commission (CFTC) treats them as commodities. These differing perspectives have set the stage for a fundamental disagreement in the approach to crypto regulation. Cryptocurrency classification significantly influences diverse aspects, ranging from issuer and exchange licenses to the legalities of selling and trading these assets.

The possibility of different cryptocurrencies facing varied regulations complicates the regulatory landscape. Discerning whether a crypto token falls under the bracket of a commodity or a security is essential for industry participants to confidently navigate regulatory complexities and for investors to make insightful decisions.

Unpacking the Howey Test for Crypto Tokens

The Howey Test, a legal benchmark for defining a financial security and investment contracts, sits at the heart of this classification debate. Originating from a 1946 SEC lawsuit, the Howey Test is used to evaluate whether an asset, including crypto tokens, qualifies as an investment contract and hence a security under federal securities laws.

The Four Criteria of the Howey Test

The Howey Test sets forth four prerequisites to deem a transaction as an investment contract:

  1. The presence of a monetary investment
  2. A common venture
  3. An anticipation of profit, where investors expect profits solely
  4. Predominantly resulting from the endeavors of others

Each of these criteria has to be met for the transaction to be considered a security under the Howey Test.

The Howey Test’s roots can be traced back to the Supreme Court case SEC v. W.J. Howey Co., where the court evaluated leaseback arrangements of citrus groves. Today, this test is applied to a host of financial transactions, including the sale and trade of crypto tokens, to determine their classification.

Application to Initial Coin Offerings

Applying the Howey Test to Initial Coin Offerings (ICOs) often leads to their classification as securities. ICOs bear resemblance to IPOs, allowing investors to buy into a project and the company to potentially share its profits, hinting at the necessity of security-like regulation.

In ICOs, the acquisition of tokens represents an investment of money, fulfilling the first prong of the Howey Test. Moreover, the anticipated profits in ICOs often stem from the work of promoters or third parties, meeting the ‘efforts of others’ aspect of the Howey Test. Thus, tokens offered in ICOs usually conform to the common enterprise requirement of the Howey Test, making them likely to be classified as securities.

The Commodity Exchange Act and Crypto Assets

Regulation of commodity assets

Conversely, the Commodity Exchange Act categorizes cryptocurrencies such as Bitcoin and Ether as commodities. This classification empowers the CFTC with regulatory authority over derivatives transactions of these crypto assets. However, the CFTC’s jurisdiction does not extend to thorough transaction oversight, focusing primarily on policing fraudulent and manipulative activities.

Currently, there’s a consideration by Congress to enhance the CFTC’s authority, potentially allowing it to regulate the spot trading of crypto tokens that are not classified as securities. Such a reform could significantly impact the oversight of digital asset markets, further complicating the crypto classification debate.

The Evolving Regulatory Framework for Digital Assets

Digital assets regulatory framework

Amidst these debates, legislative efforts continue to fine-tune regulatory frameworks for digital assets. For instance, bipartisan bills like the Lummis-Gillibrand Responsible Financial Innovation Act aim to clarify the roles of the SEC and the CFTC in overseeing digital assets.

Balancing Innovation and Regulation

These evolving regulatory proposals aim to strike a balance between fostering innovation in the digital asset space and ensuring consumer protection. They also address illicit finance risks that could potentially arise from the misuse of cryptocurrencies.

Impact on Decentralized Autonomous Organizations

Regulatory proposals may profoundly affect Decentralized Autonomous Organizations (DAOs), predominantly concerning their governance structures. The regulatory responsibilities for digital assets could influence the governance structures of DAOs depending on their classification as securities or commodities.

For instance, if a DAO’s associated digital asset is classified as a commodity, it could face regulation by the CFTC, while a classification as a security would bring it under the SEC’s jurisdiction. Thus, DAOs involved in issuing stablecoins or other digital assets would need to navigate this regulatory framework, potentially affecting their operations and governance.

The Dual Nature of Cryptocurrencies: A Closer Look at Bitcoin and Ethereum

Bitcoin and Ethereum classification debate

The classification debate grows increasingly fascinating as we delve into specific cryptocurrencies such as Bitcoin and Ethereum. Their unique characteristics and uses have sparked intense discussions about their monetary value and proper classification.

Bitcoin: Commodity or Security?

Bitcoin, which stands as the world’s inaugural and most prevalent and traded cryptocurrency, is generally regarded as a commodity by the CFTC. This classification is supported by Bitcoin’s decentralized nature and its interchangeability on exchanges, much like traditional commodities.

Gary Gensler and other key financial regulators have made it explicit that they consider Bitcoin to be a commodity, not a security. This distinction has implications for the regulatory oversight of Bitcoin. This view, while not universal, has significant implications for the regulation and trading of Bitcoin.

Ethereum: Navigating Uncertain Waters

The situation becomes less clear-cut for Ethereum, which holds the position of the second-largest cryptocurrency by market capitalization. While the CFTC may view Ethereum as a commodity, there is still uncertainty within the SEC regarding Ethereum’s classification.

The classification of Ethereum as a security could have far-reaching implications. It might force some exchanges to delist it and halt staking operations, unless they possess securities licenses. This uncertainty underscores the challenges and complexities inherent in the crypto classification debate.

The Risks and Rewards of Crypto as a Security

The classification of crypto as a security involves a mix of risks and rewards. While it can provide vital investor protections, it also subjects the asset to stricter regulations. Investments in crypto asset securities can be volatile and speculative, with potential risk for significant loss if not protected by the regulations applicable to securities.

SEC registration provides protections for investors, like asset custody standards and conduct requirements, which may be absent in the decentralized nature of crypto exchanges. However, unregistered offerings by crypto issuers could deprive investors of key information and protections, such as access to audited financial statements.

In addition, the trading platforms for crypto asset securities might not be registered, leaving investors without traditional protections against fraud and manipulation. These complexities highlight the need for clear and robust regulation in this space.

Commodities Trading vs. Securities Laws: The Crypto Dilemma

The line drawn between commodities trading and securities laws has a significant bearing on the regulatory approach toward cryptocurrencies. Securities are investments like stocks, bonds, and other interests in companies, while commodities involve the purchase of natural resources or agricultural products in advance of delivery.

The SEC regulates securities under the Securities Act of 1933, while the CFTC regulates commodity markets under the Commodity Exchange Act of 1936. Therefore, whether a digital asset is considered a security or a commodity impacts the scope of oversight and enforcement.

The Responsible Financial Innovation Act proposes measures to combat illicit finance in the crypto market, marking the CFTC as the primary regulator for digital asset markets. This further emphasizes the pivotal role the security versus commodity debate plays in determining the future of crypto regulation.

The Future of Crypto Regulation and Market Stability

Future of crypto regulation

Will their ever be a true answer to the question “is crypto a security or commodity”? A multitude of factors, such as the development of global standards, targeted restrictions, and political climates, shape the future of crypto regulation and market stability. Significant resolutions relating to digital assets in the U.S. are expected in 2024, with comprehensive rules for the crypto industry projected to stay largely undefined.

Developing consistent global standards for regulating crypto assets is vital to address market practice concerns and systemic oversight. Furthermore, the 2024 U.S. presidential and congressional elections are likely to notably influence the direction of crypto regulation and the market’s stability.

In the end, an effective and globally harmonized regulatory framework is of great importance for supervising the crypto market’s growing interconnection with the global financial system. As we navigate this evolving landscape, the key points to consider are:

  • The need for a clear and consistent classification of cryptocurrencies
  • The importance of regulatory oversight to protect investors and prevent illicit activities
  • The potential benefits of cryptocurrencies for financial inclusion and innovation

The crypto classification debate remains at the heart of these discussions.


In conclusion, the ongoing debate around classifying crypto tokens as securities or commodities is far from settled. The SEC and the CFTC have differing views, and legal benchmarks like the Howey Test play a crucial role in this classification. The evolving regulatory landscape seeks to balance innovation with regulation, affecting various stakeholders including Decentralized Autonomous Organizations. While Bitcoin is generally considered a commodity, the classification of Ethereum remains uncertain. The future of crypto regulation and market stability hinges on several factors, including the development of global standards, targeted restrictions, and political climates.

Frequently Asked Questions

Is crypto a security or commodity?

Cryptocurrencies like Bitcoin are considered commodities by the Commodity Futures Trading Commission (CFTC) rather than securities. This means they fall under the jurisdiction of the CFTC, not the SEC.

What is a security vs commodity?

When you invest in commodities, you’re investing in basic raw materials such as oil, natural gas, or precious metals, while investing in securities involves buying financial instruments representing a certain value. The fundamental difference lies in what stock is being bought and sold and the potential earnings from the investment.

What is the Howey Test and why is it important in crypto regulation?

The Howey Test is crucial in crypto regulation as it determines whether a crypto asset is an investment contract and therefore a security, influencing its classification as a security or commodity.

How does the classification of cryptocurrencies affect their regulation?

The classification of cryptocurrencies as either securities or commodities significantly impacts their regulatory treatment, for example, with securities being regulated by the SEC and commodities falling under the jurisdiction of the CFTC. This affects issuer and exchange licenses, as well as the legal sale and trading of these assets.

What are the implications of classifying crypto as a security?

Classifying crypto as a security provides investor protections but also subjects the whole asset class to stricter regulations, affecting everything from registration requirements for exchanges to investor information. This could have a significant impact on the crypto market and its participants.

Legal Disclaimer

The information provided in this article is for general informational purposes only and should not be construed as legal or tax advice. The content presented is not intended to be a substitute for professional legal, tax, or financial advice, nor should it be relied upon as such. Readers are encouraged to consult with their own attorney, CPA, and tax advisors to obtain specific guidance and advice tailored to their individual circumstances. No responsibility is assumed for any inaccuracies or errors in the information contained herein, and John Montague and Montague Law expressly disclaim any liability for any actions taken or not taken based on the information provided in this article.

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