My understanding is that the CFTC simply doesn’t have the authority to regulate all commodities, so it doesn’t much matter what they say about it. Their jurisdiction extends to futures and options:
The Commission shall have exclusive jurisdiction, except to the extent otherwise provided in the Wall Street Transparency and Accountability Act of 2010 (including an amendment made by that Act) and subparagraphs ©, (D), and (I) of this paragraph and subsections © and (f), with respect to accounts, agreements (including any transaction which is of the character of, or is commonly known to the trade as, an “option”, “privilege”, “indemnity”, “bid”, “offer”, “put”, “call”, “advance guaranty”, or “decline guaranty”), and transactions involving swaps or contracts of sale of a commodity for future delivery[.]
7 U.S.C. 2(a)(1)(A).
The question is whether a particular cryptocurrency asset is a future or option. In other words, does it give someone the obligation or right to buy or sell a commodity at some future time for a price fixed now. (There are other versions of this, particularly when talking about swaps, but that is the basic idea.)
Now, it is certainly possible that some cryptocurrencies will meet that definition. But I think each one will require a case-by-case analysis. As for whether ICOs generally are options trades subject to CFTC jurisdiction? I’m skeptical. It depends how they are structured, obviously, but they seem more like a direct sale than an options trade.
I would be much more concerned about FINCEN. They have authority to regulate direct exchanges of money (not futures or options). They have exercised that authority with regard to Ripple. (https://www.fincen.gov/news/news-releases/fincen-fines-ripple-labs-inc-first-civil-enforcement-action-against-virtual) And they have defined all cryptocurrencies as money, meaning that an exchange of one cryptocurrency (like Ethereum) for another (like an ERC-20 token) through an ICO may expose a company to FINCEN regulation.
There are certainly arguments against FINCEN’s overbroad definition. As I’ve covered on my blog at blockchainlitigation.com, there is currently a split in the courts on whether cryptocurrencies are money. And even FINCEN itself uses justifications for its definition that really should not apply to all or even most cryptocurrencies. But for ICOs, I would worry more about FINCEN than the CFTC.