The U.S. Securities and Exchange Commission published staff FAQs on Sept. 25 clarifying how its March 2026 Interpretive Release applies to crypto assets. The guidance covers staking receipt tokens, the definitions of "functional" and "decentralized" systems, and when marketing creates investment contracts. These FAQs are staff guidance without legal force. The release follows the CLARITY Act‘s failure to advance in the Senate.
The U.S. Securities and Exchange Commission published a set of frequently asked questions on Sept. 25 to clarify how its March 2026 Interpretive Release applies to crypto assets.
The FAQs, issued by the agency’s Division of Corporation Finance, explain how the division interprets existing securities laws and the earlier interpretive release. The document is staff guidance, not an SEC rule or regulation, and the agency has not formally approved or rejected the content.
According to the guidance, the definitions of "functional" and "decentralized" classify crypto assets but do not determine whether an issuer fulfilled promises to investors. Staking receipt tokens can be classified as a digital tool because they represent ownership of an underlying digital commodity and are not subject to an investment contract.
However, when issued by a protocol-based liquid staking provider, they may qualify as digital commodities. Their value is linked to the automated operation of a functional crypto system and supply-demand dynamics.
Crypto marketing creates an investment contract depending on the facts, specific promises, and profit expectations involved. Broad statements about current or potential features generally do not qualify, while detailed promises of managerial efforts tied to profits may.
An investment contract may remain intact if another party assumes the issuer’s promises. Once a system is functional, routine maintenance, upgrades, security, and development generally are not "essential managerial efforts", and a fully decentralized system with no central party is less likely to create a new investment contract.
Buybacks do not qualify for functional systems unless, for a non-functional system, they are promoted as generating returns. Exchanges do not automatically become promoters unless they meet Rule 405.
The release came after the CLARITY Act failed to advance in the Senate. A day earlier, the CFTC updated its FAQs to clarify that certain permitted assets can be held in tokenized form and that regulated firms can use blockchain for recordkeeping.
The CFTC guidance did not expand on permitted customer-fund investments in cryptocurrencies such as Bitcoin or Ether.
