Ether would then fall under the jurisdiction of both the SEC and the U.S. Commodity Futures Trading Commission (CFTC).
There is currently no certainty about ETH. CFTC representatives have repeatedly referred to ether as a commodity and stated that it is their agency that should regulate this cryptocurrency.
Gary Gensler, chairman of the SEC, believes that all cryptocurrencies and tokens, with the exception of bitcoin, should be regulated as securities.
Berkowitz emphasized that it would seem that defining an asset as both a security and a commodity at the same time is strange. However, this is not surprising, since both definitions have overlaps.
“The law is clear enough.. A particular asset can be characterized as both a commodity and a security at the same time,” the former SEC counsel emphasized.
Dan Berkowitz reminded that not only physical commodities, like wheat or oil, but also futures contracts fall under CFTC jurisdiction.
Similarly, the SEC regulates not only investment contracts and bills, but also futures on such assets. So there is an overlap in terms and an asset can be regulated simultaneously by different agencies.
Also during the podcast, Collin Lloyd, a partner at law firm Sullivan & Cromwell, noted that he personally sees nothing in the securities law that defines any cryptocurrency or token (except bitcoin) as a security.
Earlier, analysts at Ark Invest warned that the U.S. could lose leadership in the cryptocurrency industry due to uncertain laws regarding the field and the attitude of regulators.