CFTC approves bitcoin perpetual futures; SEC and CFTC define crypto framework

A. CFTC Action Regarding Crypto Perpetual Derivatives

The CFTC issued four coordinated releases on May 29, 2026, each discussed below. In the first release, the CFTC approved an order for the listing of the “BTCPERP Contract,” a perpetual contract referencing the spot price of bitcoin, as a futures contract on KalshiEX, LLC, a designated contract market (DCM).¹ Kalshi submitted the contract for CFTC review and approval under Regulation 40.3, and the CFTC determined that it complies with the Commodity Exchange Act (CEA) and applicable DCM Core Principles. This marks the first time a US regulator has approved a perpetual derivatives contract, which is a product with no expiration date that closely tracks the spot price of its underlying asset.

In its second release, the CFTC issued a companion policy statement providing that the case-by-case review process under Regulation 40.3 is appropriate for listing perpetual contracts on asset classes not covered by the Kalshi approval order² because of the “unique characteristics of perpetual contracts, which tend to vary based on the underlying asset they reference.” In practical terms, this means that exchanges may not self-certify perpetual contracts on non-crypto assets and must instead submit them for affirmative CFTC approval under the Regulation 40.3 voluntary approval process.

In its third release, the CFTC’s Market Participants Division issued a staff interpretation and no-action letter in response to a request from Coinbase Financial Markets, Inc. (CFM), a registered futures commission merchant (FCM), relating to CFM's plan to offer certain digital commodity derivatives products listed on its affiliated foreign board of trade, Deribit FZE.³ The staff letter confirmed that certain perpetual contracts may be categorized as “foreign futures” under CFTC Regulation 30.1, and that, subject to specified conditions, MPD will not recommend enforcement action against CFM for posting customer-owned digital commodities and payment stablecoins with its foreign broker affiliate to margin foreign futures and foreign options positions. This relief enables US institutional clients to access global crypto perpetual futures and options through a CFTC-registered FCM, subject to Bank Secrecy Act (BSA), anti-money laundering (AML), and know-your-customer (KYC) requirements—eliminating the need for offshore workarounds.

Lastly, the CFTC’s divisions jointly issued a staff advisory regarding 24/7 trading, clearing, and settlement, to remind designated contract markets, swap execution facilities, derivatives clearing organizations, and futures commission merchants of their regulatory obligations.⁴ The advisory acknowledges that “derivatives referencing crypto assets may be well-suited for 24/7 trading due to their digital infrastructure and global reach,” while cautioning that other markets (e.g., agricultural products) may be less suitable. The advisory emphasizes the regulatory obligations and staff expectations for entities seeking to extend trading and clearing on a 24/7 basis, including to maintain real-time risk monitoring and controls around the clock; ensure system resilience and compliance staffing for uninterrupted operations; avoid settlement during off-peak periods where risks are heightened; engage with the CFTC before extending trading hours; and clearly disclose to customers any new risks associated with extended hours.

As a result of these releases, US institutions now have regulated onshore access to bitcoin perpetual futures through DCMs and to global perpetual futures through registered FCMs. In connection with these developments, the CFTC and other major intermediaries in the market have advised that market participants should be mindful of the unique risk characteristics of perpetual contracts, including the lack of a traditional expiration date, funding rate mechanisms, auto-liquidation risks and potential leverage considerations.

B. SEC/CFTC Joint Interpretation Regarding a Crypto Asset Classification Framework

On March 17, 2026, the SEC issued an interpretation clarifying how federal securities laws apply to certain crypto assets and transactions involving crypto assets.⁵ The CFTC joined the interpretation to provide guidance that it and its staff will administer the CEA consistent with the SEC’s views.⁶

The interpretation establishes a coherent taxonomy classifying crypto assets into five categories: digital commodities, digital collectibles, digital tools, stablecoins, and digital securities. The first three categories are generally not themselves securities. Stablecoins qualifying as “payment stablecoins” under the GENIUS Act are excluded from the definition of security by statute.⁷ Digital securities remain subject to the full scope of federal securities laws. The CFTC’s accompanying guidance confirmed that certain non-security crypto assets could meet the definition of a commodity under the CEA.

The interpretation addresses how a “non-security crypto asset” may become subject to, and how it may later cease to be subject to, classification as an investment contract. This is significant because it acknowledges for the first time in a Commission-level interpretation that investment contracts can change status, providing a path for crypto assets initially sold through investment contracts to eventually separate from securities regulation. The interpretation also clarifies the application of federal securities laws to airdrops, protocol mining, protocol staking, and the wrapping of a non-security crypto asset, generally concluding that these activities do not involve the offer and sale of securities.

The SEC has generally solicited public comment on its interpretative release and may refine, revise, or expand it based on feedback received.

C. Practical Implications of CFTC and SEC Actions

There are several implications for these recent regulatory developments with the CFTC and SEC. First, while perpetual contract listings are now possible for bitcoin and similar crypto assets, perpetual contracts on non-crypto asset classes are not authorized through self-certification and require direct engagement with the CFTC and affirmative approval before listing. The CFTC’s no-action relief to Coinbase also creates a regulatory pathway for FCMs to offer US customers access to foreign crypto perpetual futures and options on affiliated foreign boards of trade, provided applicable BSA/AML/KYC obligations are met. Second, 24/7 trading is a viable option for crypto derivatives, but the CFTC has set expectations that exchanges ensure robust real-time monitoring, system resilience, compliance infrastructure, and customer disclosures are in place before extending trading hours.

Separately, the SEC/CFTC joint interpretation provides long-sought clarity on the securities status of major categories of crypto assets. Participants should evaluate whether their assets or activities fall within the digital commodities, digital collectibles, digital tools, stablecoins, or digital securities classifications. In particular, the interpretation’s framework for investment contract separation may create opportunities for projects to demonstrate that their tokens are no longer subject to securities regulation.
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If you have any questions about this Legal Briefing, please feel free to contact any of the attorneys listed or the Eversheds Sutherland attorney with whom you regularly work.

_{1 See CFTC Press Release No. 9240-26 (May 29, 2026), CFTC Approves BTCPERP Contract Submitted by KalshiEX, LLC, accessible at https://www.cftc.gov/PressRoom/PressReleases/9240-26. 
2 See CFTC Press Release No. 9242-26 (May 29, 2026), CFTC Issues Policy Statement Concerning the Listing of Perpetual Contracts, accessible at https://www.cftc.gov/PressRoom/PressReleases/pr-9242-26.
3 See CFTC Press Release No. 9241-26 (May 29, 2026), Commission Staff Confirms the Categorization of Certain Crypto Asset Perpetuals as Foreign Futures and Issues No-Action Letter Regarding FCM Transfers of Customer Crypto Assets to Foreign Brokers as Margin, accessible at https://www.cftc.gov/PressRoom/PressReleases/9241-26.
4 See CFTC Press Release No. 9239-26 (May 29, 2026), CFTC Staff Issues Advisory on 24/7 Trading, Clearing, and Settlement, accessible at https://www.cftc.gov/PressRoom/PressReleases/9239-26.
5 See SEC Press Release No. 2026-30 (Mar. 17, 2026), SEC Clarifies the Application of Federal Securities Laws to Crypto Assets, accessible at https://www.sec.gov/newsroom/press-releases/2026-30-sec-clarifies-application-federal-securities-laws-crypto-assets.
6 See CFTC Press Release No. 9198-26 (Mar. 17, 2026), CFTC Joins SEC to Clarify the Application of Federal Securities Laws to Crypto Assets, accessible at https://www.cftc.gov/PressRoom/PressReleases/9198-26.
7 See Guiding and Establishing National Innovation for US Stablecoins Act (GENIUS Act), Pub. L. No. 119‑27, § 3 (2025).}