On March 17, 2026, the The Securities and Exchange Commission (SEC) and the Commodity Futures Trading Commission (CFTC) jointly issued a landmark interpretive release (Release Nos. 33-11412; 34-105020) providing long-awaited clarity on which crypto assets are securities and which are not. This marks a significant shift toward principles-based regulation for digital assets and provides actionable guidance for issuers, investors, and market participants.
Key Takeaways
- This guidance replaces the SEC’s prior “regulation by enforcement” approach and supersedes all prior staff statements on these topics; however, the guidance applies prospectively and does not affect prior enforcement actions or ongoing litigation.
- The Howey test remains binding legal precedent, but this new framework is how the SEC will analyze crypto assets going forward.
- Bitcoin, Ether, Solana, XRP, and other major cryptocurrencies are classified as “digital commodities” — not securities.
- Mining, staking, wrapping, and airdrops (without consideration) do not involve securities transactions.
- A non-security crypto asset can still become subject to an investment contract — and thus securities laws — if the issuer makes specific promises about “essential managerial efforts” from which purchasers expect profits.
Classification Framework
The Interpretive Release introduces several key definitions that are foundational to understanding the guidance. A “crypto asset” is defined as a digital representation of value or rights recorded on a decentralized, permissionless, and cryptographically secured distributed ledger. A “crypto network” refers to a network of nodes that run a consensus mechanism maintaining a distributed ledger, while a “crypto application” is software that reads from or writes to a crypto network but is not core consensus software. The term “crypto system” encompasses both crypto networks and crypto applications collectively. Activities occurring directly on a distributed ledger are referred to as “onchain,” while activities occurring outside a distributed ledger are “offchain.”
| Category | Description & Examples | Securities Treatment |
| Digital Securities | Crypto assets that meet the definition of a security under the Securities Act. Examples include tokenized versions of stocks, bonds, or other traditional securities or financial instruments. | Subject to federal securities laws. A digital security is a security regardless of whether it is issued offchain or onchain; a digital security does not cease being a security when used to provide non-financial benefits similar to a digital commodity, digital collectible, or digital tool. |
| Digital Commodities | Crypto assets intrinsically linked to and deriving value from the programmatic operation of a functional crypto system, as well as supply and demand dynamics. Examples could include Bitcoin, Ether, Solana, XRP, Dogecoin, Cardano, Polkadot. | Not securities. A purchaser would not reasonably expect to profit based on the essential managerial efforts of others. |
| Digital Collectibles | Unique or limited-edition crypto assets valued for their uniqueness rather than profit potential. Examples include NFTs, CryptoPunks, meme coins. | Not securities, unless sold pursuant to an investment contract. Important exception: The offer and sale of a digital collectible that is fractionalized could constitute the offer or sale of a security because it may involve essential managerial efforts from which a purchaser would reasonably expect to derive profits. |
| Digital Tools | Crypto assets providing functional utility within a crypto system. Examples include governance tokens, access tokens, ENS domain names, and membership badges. | Not securities, unless sold pursuant to an investment contract. |
| Stablecoins | Crypto assets designed to maintain a stable value relative to a reference asset. Examples include GENIUS Act compliant payment stablecoins. | Not securities, provided certain conditions are met. |
Importantly, some crypto assets may not fall within any of these five categories, and some may have hybrid characteristics that span more than one category.
Excluded Activities
The guidance clarifies that the following activities do not involve securities transactions:
- Mining - Solo mining and mining pool participation on proof-of-work networks
- Staking - Solo, custodial, and liquid staking on proof-of-stake networks
- Wrapping - Exchanging crypto for wrapped tokens on a 1:1 basis
- Airdrops - Distributing tokens without consideration from recipients
- Other Activities - Bona fide gifts of crypto assets, use of crypto assets for their intended functional purpose, and secondary market trading of non-security crypto assets not subject to an investment contract are also excluded from securities treatment
Investment Contract Triggers
A non-security crypto asset can still become subject to an investment contract — and therefore securities laws — if an issuer makes representations or promises about “essential managerial efforts” that would lead purchasers to expect profits. Key factors include:
- Source: Promises must come from the issuer, not random third parties
- Timing: Representations must be made before or at the time of sale
- Specificity: Detailed roadmaps with milestones and funding are more likely to trigger securities treatment than vague statements
Importantly, an investment contract can terminate when the issuer fulfills its promises or publicly abandons the project.
Action Items
- Classify your assets. Conduct a legal analysis under the SEC’s five-category framework.
- Review your communications. Detailed business plans with milestones and profit expectations may trigger securities obligations.
- Disclose completion. When development goals are met, publicly announce completion to terminate any investment contract.
- Structure airdrops carefully. Avoid requiring consideration in exchange for airdropped tokens.
- Register when necessary. Some crypto assets will still require SEC registration.
Looking Ahead
The SEC expressly describes this guidance as a “first step” toward a clearer regulatory framework. The CFTC has confirmed it will administer the Commodity Exchange Act consistently with this interpretation. Market participants should monitor future developments as the regulatory landscape continues to evolve.
