Blockchain Legal Resource

On March 17, 2026, the US Securities and Exchange Commission (SEC) announced the release of interpretive guidance (Guidance) seeking to clarify the application of the federal securities laws to various categories of crypto assets. The Commodity Futures Trading Commission also joined the guidance to assure market participants it would interpret the Commodity Exchange Act in a consistent fashion.

The Guidance is the latest effort by the SEC to provide formal, written direction on the legal status of crypto assets under the federal securities laws, avoid what the Guidance terms “regulation by enforcement,” and return the SEC to its core function of regulating securities markets but not financial instruments outside its statutory jurisdiction.  To this end, SEC Chairman Paul Atkins recently noted in public remarks that the SEC is no longer the “securities and everything commission.” As a document issued by the presidentially-appointed SEC commissioners, the Guidance is entitled to higher judicial deference than interpretations released by agency staff, and also requires greater effort to repeal by a future SEC. The Guidance also alludes to the SEC’s 2017 DAO Report, but does not explicitly rescind it.

The Guidance seems to have two-overarching aims, particularly in the context of investment contracts that are deemed securities under the Supreme Court’s 1946  Howey test: (1) clarify that various discrete categories of crypto assets and related activities are presumptively not securities, and (2) provide more concrete guidance on how other crypto assets become subject to, and cease to be subject to, the federal securities laws.

Turning first to crypto assets and related activities that are presumptively not securities, the Guidance lays out a series of assumptions and conditions.  If these assumptions and conditions are met, the Guidance provides that the following crypto assets are generally outside the ambit of Howey and the federal securities laws:

• Digital Commodities – Crypto assets that are intrinsically linked to and derive their value from the programmatic operation of a crypto system that is “functional,” as well as supply and demand dynamics, rather than from the expectation of profits from the essential managerial efforts of others.
• Digital Collectibles – Crypto assets that are designed to be collected or used and may represent or convey rights to artwork, music, videos, trading cards, in-game items, or digital representations or references to internet memes, characters, current events, or trends, among other things.
• Digital Tools – Crypto assets that perform a practical function, such as a membership, ticket, credential, title instrument, or identity badge.
• Payment Stablecoins – Crypto assets that qualify as a “payment stablecoin issued by a permitted payment stablecoin issuer” under the GENIUS Act.

Additionally, the Guidance specifies that certain activities associated with crypto assets do not involve the offer and sale of a security, again assuming certain conditions are met. These activities include protocol mining, protocol staking, and the wrapping of a non-security crypto asset in which a person deposits a crypto asset and receives an equivalent amount of another crypto asset, each as further described in the Guidance. Under very specific circumstances explained in the Guidance, certain airdrops of securities also do not involve the offer and sale of securities. The statement on airdrops seems intended to walk back the position the SEC took on the subject in a 2018 enforcement case.

The Guidance is careful to make clear that digital securities, also known as tokenized securities, are still subject to the federal securities laws. There, the Guidance was careful to note that a “security is a security regardless of whether it is issued, or otherwise represented, offchain or onchain.”  In other words, “devices and instruments that have the economic characteristics of a security are securities regardless of format or label.”

Finally, the Guidance lays out some parameters around how a non-security crypto asset may become subject to, and how it may cease to be subject to, an investment contract under Howey.  The Guidance explains how a non-security crypto asset becomes subject to an investment contract under Howey when an issuer offers it by inducing an investment of money in a common enterprise with representations or promises to undertake essential managerial efforts from which a purchaser would reasonably expect to derive profits. The Guidance also discusses the nature of the representations or promises necessary to form an investment contract, including the source of the representations or promises, the medium by which they are communicated, and the level of detail they must provide. Additionally, the Guidance explains how a non-security crypto asset ceases to subject to an investment contract when the investment contract terminates because either the issuer has fulfilled its promises or the issuer has failed to satisfy those promises. While the Guidance seems intended to streamline the Howey analysis under these scenarios, that analysis remains a very fact-and-circumstances-intensive one.