SEC Guidance on Digital Assets: Is a Crypto Rulemaking Next?
April 27, 2026
What happened?
The SEC and CFTC have released interpretive guidance on the application of the federal securities laws to crypto assets and transactions involving crypto assets. Chairman Atkins said that “this interpretation will provide market participants with a clear understanding of how the Commission treats crypto assets under federal securities laws” and stressed the importance of regulators drawing “clear lines.” While interpretive guidance does not have the force and effect of law, the message of the current SEC is clear: most crypto assets are not viewed as being securities.
Security or not?
- Digital Securities or “Tokenized” Securities ARE SECURITIES – Digital securities or tokenized securities are financial instruments included in the definition of “security” under the Securities Act that are formatted or represented by a crypto asset. The rights of holders may vary, but tokenized securities tend to be (1) securities tokenized by or on behalf of the issuers of the securities, or (2) securities tokenized by third parties unaffiliated with the issuers of such securities, which may involve the third party issuing a separate security that derives its value from or is otherwise linked to the subject security.
- Digital Commodities are NOT Securities – A digital commodity is a crypto asset that is intrinsically linked to and derives its value from the programmatic operation of a crypto system and supply and demand dynamics, rather than the expectation of profits from the managerial efforts of others. Digital commodities have no intrinsic property rights like yield, future income, profits, or assets of a business or other entity.
- The release gave the following examples of digital commodities: Aptos (APT); Avalanche (AVAX); Bitcoin (BTC); Bitcoin Cash (BCH); Cardano (ADA); Chainlink (LINK); Dogecoin (DOGE); Ether (ETH); Hedera (HBAR); Litecoin (LTC); Polkadot (DOT); Shiba Inu (SHIB); Solana (SOL); Stellar (XLM); Tezos (XTZ); and XRP (XRP).
- Digital Collectibles are NOT Securities – Digital collectibles are a crypto asset that is designed to be collected and/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. A digital collectible does not provide holders with any legal rights or interest in or with respect to a business enterprise or other entity.
- Digital Tools are NOT Securities – A digital tool is a crypto asset that performs a practical function, such as a membership, ticket, credential, title instrument, or identity badge. Digital tools are commonly issued for use in connection with crypto systems and are designed to perform practical functions within such systems. They are often non-transferable, and their value is derived from their practical functionality.
- The release gave Ethereum Name Service domain names and CoinDesk’s ‘Microcosms’ NFT Consensus Ticket as examples of digital tools.
- Stablecoins – A stablecoin is a crypto asset that is designed to maintain a stable value relative to a reference asset, like the U.S. dollar. The release recognizes two types of stablecoins that are not securities.
- Payment Stablecoins, as defined by the GENIUS Act. Note that the GENIUS Act’s effective date is the earlier of 18 months after July 18, 2025, or 120 days after the primary Federal Payment Stablecoin regulators issue final regulations implementing the GENIUS Act. The Federal Reserve, among other regulators, has yet to issue final implementing regulations.
- Covered Stablecoins, as defined by the SEC’s Division of Corporate Finance, April 3, 2025. While only a staff statement and not a regulation, the SEC is interpreting the offer and sale of Covered Stablecoins as not an offer and sale of securities.
Investment Contracts and Protocol Mining Activities
The interpretive guidance also speaks to when a non-security crypto asset may become subject to investment contracts and clarifies the application of federal laws to “airdrops, protocol mining, protocol staking, and the wrapping of a non-security crypto asset.” For more details, see the full release here.
What does this mean for me?
Last Spring, under Acting Chairman Uyeda, the SEC put a “Crypto Assets” rule in the rulemaking agenda. It is nice to have interpretive guidance, but the latest release is not a formal rulemaking. The next administration could easily wipe this interpretive guidance away by releasing a new interpretation. Will all of this activity around crypto assets result in a new rulemaking?
Now could be the start of Chairman Atkins led rulemakings. Chairman Atkins gave a speech in conjunction with the release of the interpretative guidance, where he said he expects the SEC to release a proposed rule creating a safe harbor for investment contracts for certain crypto assets “in the coming weeks.” After an SEC staff statement was released this month regarding broker-dealer registration requirements around interfaces designed for transactions in crypto asset securities, Commissioner Pierce emphasized the need for public feedback to inform future rulemaking. Perhaps now is the time for the SEC to walk down the path cleared by staff statements and interpretive guidance and start codifying policy objectives by issuing formal rulemakings.
We will continue to monitor new developments that impact investment advisers and compliance programs. If you have questions, contact us. Fairview is here to help.
