The regulator referred to Ether, Bitcoin, and Tether (USDT), among several others, as commodity markets under American law many times in its case against Sam Bankman-Fried, FTX and sister business Alameda Research.
According to Section 1a(9) of the Act, 7 U.S.C. 1a(9), some digital assets constitute commodities, notably bitcoin (BTC), Ether (ETH), tether (USDT), and others. However, in recent weeks, there seems to have been significant dissent inside the CFTC itself over whether Ethereum should be treated as a product or not.
Rostin Benham, the head of the CFTC, allegedly said that Bitcoin is the only cryptocurrency that should be treated as a product on November 30 at a cryptocurrency seminar at Princeton University. It takes back earlier remarks suggesting that Ether may potentially be treated as a product.
Gary Gensler, the head of the Securities and Exchange Commission, has also been unsure about his position on ether recently. In the past, Gensler has claimed that while Ether was once a security, it has subsequently grown more decentralized and transformed into a commodity.