Most securities lawyers are familiar with federal preemption of state qualification requirements pursuant to Section 18 of the Securities Act of 1933 ("Securities Act").  See, e.g., my post regarding preemption and Rule 506 offerings.  I expect that fewer lawyers are familiar with preemption pursuant to Section 28(a) of the Securities Exchange Act of 1934 ("Exchange Act"). 

In 2000, Congress amended Section 28(a) as part of the Commodity Futures Modernization Act (P.L. 106-554) to make state laws regarding the offer, sale or distribution of securities inapplicable to any transaction in a "security futures product".  The term, "security futures product" was coined at that time by the Securities and Exchange Commission and the Commodity Futures Trading Commission and refers to single stock or narrow index futures contracts.  See Section 3(a)(56) of the Exchange Act.  Congress did not, however, preempt state antifraud laws of general application.

Section 767 of the Dodd-Frank Act rewrites Section 28(a) of the Exchange Act.  Among other changes, the statute now lists "security-based swaps" as well as security futures products.  The Dodd-Frank Act also amends Section 3(a)(10) of the Exchange Act and Section 2(a)(1) of the Securities Act to include "security-based swaps" within the listing of items that are defined as securities.  A definition of "security-based swap" has also been added to Section 3(a) of the Exchange Act. 

Because the qualification requirements of the Corporate Securities Law of 1968 ("CSL") are laws regarding the offer, sale or distribution of securities, those requirements may not be applied to any transactions in either security futures products or security-based swaps.  Further, it is not entirely clear whether a security futures product or a security-based swap is a security under the CSL.   Corporations Code § 25019 mentions neither term in defining a "security".   The amendments to the definitions of "security" under the Exchange Act and Securities Act suggest that these financial products did not come within the existing definitions.