Reed Smith Client Alerts

On March 24, 2020, the Commodity Futures Trading Commission (CFTC) voted to unanimously approve its final interpretive guidance on the term “actual delivery” for retail commodity transactions in virtual currency (the Final Interpretive Guidance).1 The Final Interpretive Guidance finalizes the CFTC’s proposed interpretive guidance, which it issued in December 2017 (the 2017 Proposed Interpretive Guidance).2


  • This Final Interpretive Guidance closely tracks the 2017 Proposed Interpretive Guidance.
  • The Final Interpretative Guidance applies to OTC leveraged or financed contracts on virtual currencies (i.e., derivatives) with retail participants and recognizes the difficulty to show possession and control in virtual currency transactions.
  • To qualify for the “actual delivery” exception for retail commodity transactions in virtual currencies the buyer must achieve actual possession and control of virtual currency within 28 days of execution.
  • Sellers of retail commodity transactions in virtual currency must either achieve “actual delivery” to the buyer without retaining any residual interests or control or offer products “as if” they are future contracts.
  • Commodity transactions in virtual currency with ECPs remain unaffected.