SEC and CFTC Issue Joint Interpretation on Crypto Assets: Key Implications for Securities Law
U.S. regulators have taken another significant step toward clarifying the legal status of digital assets. In Release Nos. 33-11412 and 34-105020, the U.S. Securities and Exchange Commission (SEC) and the Commodity Futures Trading Commission (CFTC) issued a joint interpretive statement addressing the application of federal securities laws to certain crypto assets and crypto-related transactions. The interpretation is intended to provide additional guidance to market participants navigating an area that has long been criticized as governed by “regulation by enforcement.” Below we break down the key elements of the interpretation and what they may mean for developers, investors, and participants in the digital asset ecosystem.
Background: The SEC’s Long Engagement with Crypto Assets
The SEC has been analyzing the regulatory status of crypto assets for more than a decade. A key milestone came in the 2017 DAO Report, where the SEC applied the Howey test to determine that certain token offerings constituted securities transactions. Since that time, industry participants have repeatedly requested clearer guidance regarding when a digital asset should be treated as a security versus a commodity or other non-security asset.
In January 2025, Acting SEC Chairman Mark T. Uyeda established a Crypto Task Force to evaluate these issues. The task force reportedly received more than 300 written submissions from industry participants and hosted several roundtables with stakeholders. Subsequently, the President’s Working Group on Financial Markets released a report in July 2025 recommending greater regulatory clarity in digital asset markets.
Following that report, SEC Chairman Paul S. Atkins launched “Project Crypto,” a joint initiative between the SEC and the CFTC aimed at clarifying regulatory jurisdiction and market structure.
The Legal Framework: What Is a “Security”?
Federal securities laws define a security broadly to include a wide range of financial instruments, including:
stocks
bonds
notes
investment contracts
The U.S. Supreme Court has repeatedly emphasized that the determination of whether an instrument is a security depends on the economic realities of the transaction rather than the labels used by the parties. For many digital asset transactions, the analysis centers on the Howey test, derived from SEC v. W.J. Howey Co. (1946). Under the Howey test, an investment contract exists when there is:
an investment of money
in a common enterprise
with a reasonable expectation of profits
derived from the efforts of others.
If a digital asset transaction meets these elements, it may be subject to federal securities laws.
Categories of Crypto Assets Identified in the Interpretation
The interpretive statement groups digital assets into several categories based on their economic function and intended use.
1) Digital Commodities
Digital commodities are crypto assets that derive their value primarily from the functioning of the underlying protocol and market supply and demand, rather than managerial efforts by a centralized issuer.
Examples commonly cited include:
Bitcoin
Ethereum
Solana
These assets may function similarly to commodities and are often associated with decentralized networks.
2) Digital Collectibles
Digital collectibles are crypto assets designed primarily for collectibility or cultural value, such as:
digital artwork
trading cards
memes
fan tokens.
Examples include projects like CryptoPunks and other NFT-style assets.
3) Digital Tools
Digital tools provide functional utility within a network, such as access credentials, domain names, or governance rights. Examples include services such as Ethereum Name Service (ENS) domains. These assets may function more like software or access rights than financial investments.
4) Stablecoins
Stablecoins are digital assets designed to maintain a stable value relative to a reference asset, such as the U.S. dollar.
Common mechanisms include:
fiat-backed reserves
algorithmic stabilization mechanisms
collateralized crypto reserves.
Stablecoins have become a central part of digital asset infrastructure, particularly in trading and decentralized finance applications.
5) Digital Securities
Some digital assets may fall directly within the statutory definition of securities when they represent traditional financial instruments issued in tokenized form, such as:
tokenized equity
tokenized debt instruments
tokenized investment funds.
These assets are generally subject to federal securities regulation.
When a Crypto Asset Becomes an Investment Contract
Even if a crypto asset is not inherently a security, it may become subject to securities laws if it is offered or sold as part of an investment contract. Under the interpretation, this may occur when an issuer induces investors to contribute capital in a common enterprise while representing that the issuer or promoter will undertake essential managerial efforts expected to generate profits for purchasers. Investor expectations may be shaped by communications such as:
marketing materials
whitepapers
public statements
social media communications
contractual agreements.
Importantly, the interpretation also notes that a digital asset may separate from an earlier investment contract if the issuer’s promised managerial efforts are completed or abandoned. However, such separation does not eliminate liability for prior securities law violations.
Mining and Staking Activities
The interpretive statement also addresses common blockchain activities.
1) Proof-of-Work Mining
Mining activities on proof-of-work networks generally do not involve securities transactions. Miners contribute computational resources to validate transactions and secure the network. Their rewards arise from their own operational activities rather than the managerial efforts of others. Similarly, mining pool operators typically perform administrative coordination functions, which the interpretation characterizes as ministerial rather than managerial.
2) Proof-of-Stake Staking
The interpretation also concludes that certain protocol staking activities do not necessarily constitute securities transactions. Examples include:
self-staking by node operators
self-custodial staking arrangements
custodial staking services
liquid staking mechanisms that issue staking receipt tokens.
Service providers may offer additional services such as slashing coverage, early unbonding, or alternative reward schedules without necessarily providing the type of managerial efforts required under the Howey test.
Wrapping and Interoperability Tokens
The guidance also discusses wrapped tokens, which allow crypto assets to move between different blockchain networks. In a typical wrapping arrangement, a user deposits a crypto asset with a provider, who issues a corresponding redeemable wrapped token on a one-to-one basis. Because this process generally involves administrative conversion rather than investment solicitation, it may not constitute a securities transaction when the underlying asset is not itself a security.
Airdrops and the “Investment of Money” Requirement
The interpretation also addresses airdrops, where digital assets are distributed to recipients without payment. Where recipients provide no consideration and do not bargain for the tokens, the “investment of money” element of the Howey test may not be satisfied. As a result, such distributions may fall outside the definition of an investment contract.
Potential Impact on the Crypto Industry
The stated objective of the interpretation is to reduce regulatory uncertainty and compliance costs for market participants. Clearer guidance regarding how federal securities laws apply to digital assets could potentially:
encourage innovation in blockchain technology
facilitate capital formation
promote competition within digital asset markets
strengthen the United States’ role in the global crypto economy.
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*This article is provided for informational purposes only, and does not constitute legal advice, counsel or representation.
