The U.S. Commodity Futures Trading Commission (CFTC) has set out preliminary criteria indicating that even if bitcoin is bought without a loan, the purchase could still fall under futures-related regulation.

On Oct. 21, blockchain media outlet CryptoSlate reported that the CFTC set out the position in a consultation document on a regulatory framework for cryptocurrency trading. It said regulators should consider not only whether a buyer actually used a loan, but also whether the transaction included terms offering loans or leverage and whether the purchased asset was actually delivered.

The key point is that a buyer is not excluded from regulation simply because the buyer rejected a loan or leverage offer. The CFTC viewed that for retail investor transactions subject to such terms, a buyer could still be subject to futures-related regulation until statutory exemption requirements, such as actual delivery, are met even if the buyer pays the full amount.

Another issue is whether there is actual delivery. The CFTC placed importance on whether a buyer can materially hold and control the asset. For cryptocurrencies, whether the buyer has secured access rights such as a wallet's private key could be a factor, and actual delivery may not be recognised if only the purchase record is entered on an exchange's internal ledger.

Current law provides exemptions, including cases where actual delivery takes place within 28 days of the transaction. The CFTC said moving cryptocurrency to a user's external non-custodial wallet can generally meet such an exemption. Ultimately, alongside how payment is made, who controls the purchased asset and how it is transferred are factors that determine whether regulation applies.

The interpretation does not mean all cash purchases of bitcoin are treated as futures transactions. It requires an overall assessment of whether a credit offer applied to the transaction, whether the buyer's status falls under the relevant rules, and whether exemption requirements such as actual delivery were met. The focus is that no conclusion can be reached based on the single fact that a loan was not used.

As a result, exchanges and brokerage services are expected to treat not only payment methods but also contract terms and the custody and transfer structure of assets as important review factors. That is because even a transaction labelled as a spot purchase could face a different regulatory assessment if it is tied to credit terms and control of the asset remains with the exchange.

The document is a preliminary interpretation at the consultation stage, not a final rule. The CFTC will accept related comments until Dec. 14. Going forward, the scope of applying credit offers and specific conditions for recognising actual delivery are expected to be major issues.