On October 17, 2025, the National Futures Association (NFA) notified members that it has submitted a proposal to the Commodity Futures Trading Commission (CFTC) that, after taking effect, would repeal Interpretive Notice 9073, an NFA guidance document outlining risk-disclosure requirements for promotional materials, offering memoranda and account brochures of NFA members such as CFTC-registered commodity pool operators and commodity trading advisers engaged in activities related to virtual currency and virtual-currency derivatives (digital assets). In parallel, the NFA’s proposal would amend Compliance Rule 2-51, which outlines conduct standards for NFA members engaged in digital-asset activities, to remove references to Interpretive Notice 9073 and expand the rule’s scope to cover all digital assets with an associated CFTC-regulated contract, rather than only bitcoin and ether. Managers that are not NFA members, or whose products have no digital-asset exposure, are unaffected by these changes.
Background
For the past seven years, Interpretive Notice 9073 has required NFA-member managers whose products feature any amount of trading in digital assets to provide investors with both specific, short-form risk disclosures (in marketing decks and offering memoranda or brochures) and tailored, long-form risk disclosures (typically included in an investment product’s primary disclosure document, such as a Reg D fund’s private placement memorandum). Interpretive Notice 9073 is somewhat anomalous among marketing guidance because it applies detailed disclosure requirements to NFA-member managers whose products would otherwise be exempt from specific, detailed disclosure requirements under CFTC rules, such as managers relying on CFTC Rule 4.7 (for pooled investment vehicles and accounts whose participants are Qualified Eligible Persons) or CFTC Rule 4.13(a)(3) (for pools with sophisticated investors and de minimis commodity interest exposure).
For example, Interpretive Notice 9073 requires managers engaged in spot virtual-currency trading to provide both a brief, standardized risk disclosure in their marketing materials and long-form virtual-currency risk factors addressing:
- Unique features of virtual currencies.
- Price volatility characteristics.
- Valuation and liquidity risks.
- Cybersecurity considerations.
- Spot market opacity.
- Risks involving the structure of virtual-currency exchanges, intermediaries, and custodians.
- The unsettled regulatory landscape surrounding virtual currencies.
- Evolving technology factors.
- Transaction fees.
The NFA has also expected managers with a significant concentration of trading in particular digital assets (such as CME bitcoin futures) to describe the unique features of those assets in terms of the foregoing factors. Similar requirements apply to virtual-currency derivatives (though without a specifically defined short-form disclosure).
Five years after promulgating Interpretive Notice 9073, the NFA implemented Compliance Rule 2-51, which defines conduct standards for members engaged in digital-asset activities. The rule includes explicit prohibitions on fraudulent or misleading statements, misappropriation of digital assets, and a requirement to supervise employees engaged in digital-asset activities and to adhere to just and equitable principles of trade. Compliance Rule 2-51 also referenced the disclosure obligations of Interpretive Notice 9073, effectively elevating compliance with the notice to an NFA membership-bylaw obligation (at least for activities involving bitcoin or ether) and raising the prospect of supervision deficiencies if members failed to satisfy its requirements. As originally drafted, however, Compliance Rule 2-51 applied only to activities involving bitcoin and ether.
Implications
The NFA’s proposal to the CFTC invoked the 10-day notice provision of the Commodity Exchange Act, under which, absent action by the CFTC, the proposal will become effective 10 days after its receipt by the CFTC. Although the NFA dated its proposal October 1, it only notified members of its submission on October 17, making it unclear whether the CFTC has only just received it. Nonetheless, the CFTC is unlikely to reject the proposal given the commission’s current regulatory priorities and the ongoing U.S. government shutdown (under which only a small fraction of CFTC staff are currently working). The NFA’s proposal will presumably become effective by the end of October at the latest.
Managers should assume the proposal will take effect but seek counsel and consider the following points before amending their marketing and promotional materials.
- The proposal does not impose an affirmative obligation on NFA members to remove existing disclosures included in compliance with Interpretive Notice 9073. Absent further instruction from the NFA, there is no need for most managers to rush amendments. Managers should consider changes, if any, for new product launches, and for existing materials when open for revision. The short-form risk disclosures prescribed under Interpretive Notice 9073 may be removed at managers’ convenience.
- Managers whose funds or accounts require NFA pre-approval of marketing materials (such as commodity pool operators relying on Rule 4.12(b) relief) should consult counsel before submitting any materials containing prior disclosures created to comply with Interpretive Notice 9073.
- All managers should make decisions about removing long-form risk disclosures thoughtfully; in some cases, retaining existing long-form disclosures (or including similar disclosures for new offerings) may be prudent.
- The proposal would not rescind the remainder of NFA Compliance Rule 2-51, which continues to prohibit fraudulent or misleading promotional activities related to digital assets. Compliance Rule 2-51, and more general NFA advertising rules, also require appropriate disclosure of material risks.
- The proposal signals that the NFA is likely to develop new digital-asset disclosure requirements after consulting its advisory committees and affected members.
- Many offering memoranda and account brochures currently in the market include digital-asset risk disclosures created to comply with Interpretive Notice 9073, which has established a baseline “norm” in this area. Managers, particularly those whose products feature significant digital-asset exposure, may wish to consider following the general recommendations of Interpretive Notice 9073, pending guidance.
Alston & Bird’s Investment Funds Team is ready to assist managers with all aspects of the disclosure regime affecting CFTC-regulated managers in the digital-assets space.
If you have any questions, or would like additional information, please contact one of the attorneys on our Investment Funds team.
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