[aftbit]

IMO this is more a case of who you ask and what their current goal is.

CFTC regulates commodities, so of course they will say things they want to regulate are commodities. OTOH SEC regulates securities, so they will say things are securities.

See also the way any kind of fraud can become "securities fraud" if you have investors. Basically, if your business involves defrauding customers, that is likely going to negatively impact stock price when it comes out, and if you lied and told shareholders you were not defrauding customers, you are also defrauding shareholders thus securities fraud thus SEC jurisdiction.