On March 17, 2026, the Securities and Exchange Commission (SEC) released an Interpretative Release that clarifies the criteria for determining whether crypto assets are classified as securities in the United States. The document details the legal parameters for differentiation, directly impacting the regulation of the digital market.
The Commodity Futures Trading Commission (CFTC) expressed adherence to the SEC’s position regarding the division of responsibilities between the agencies. According to the agreement, crypto assets classified as commodities will be under the supervision of the CFTC, while digital securities will continue to be regulated by the SEC. This aims for a clearer definition of each agency’s role.
The Interpretative Release specifies that there are four categories of crypto assets that do not qualify as securities under federal laws. However, tokenized digital securities remain defined as securities due to their function of representing registered ownership on cryptographic networks. Therefore, these assets remain subject to securities laws.
The SEC also highlights that crypto assets initially not classified as securities may receive such designation when traded through investment contracts. For this evaluation, the commission uses the Howey test, established by the United States Supreme Court, which considers factors such as financial investment, common enterprise, and expectation of profit derived from the efforts of others.
The document emphasizes that explicit promises made by the issuer, demonstrating clear expectations of financial return, support the securities classification. On the other hand, vague or generic statements are insufficient for this classification. Thus, the securities status may be revoked if the investment contract is fully fulfilled or abandoned.
Furthermore, the SEC states that practices such as protocol mining, protocol staking, and wrapping generally do not constitute securities offerings. Likewise, the free delivery of crypto assets, known as airdrop, is not considered a financial investment for the purposes of the Howey test, excluding the applicability of these regulations in these specific cases.
This Interpretative Release became effective immediately upon its publication, incorporating recent decisions such as the initiatives of Project Crypto, which the SEC began the previous year. The update reinforces the intention to apply federal law cautiously, as the crypto asset environment evolves rapidly.
The main focus of the document is to ensure transparency about the conditions under which securities laws apply to crypto assets. According to the SEC, the definition of a typical investment involves financial contributions, the existence of a common enterprise, and the expectation of returns derived from managerial efforts, essential elements in regulatory assessment.
Finally, the changes promoted by this regulatory update are expected to influence the legal environment for crypto assets in the United States, offering greater legal certainty both for issuers and investors. The expectation is that the SEC will continue monitoring market development while analyzing the application of these new guidelines.
