US SEC follows CFTC in staff guidance for crypto

The US Securities and Exchange Commission (SEC) updated its policies on how securities laws will apply to “certain types of crypto assets and certain transactions involving crypto assets,” following a similar move by the country’s federal commodities regulator last week.

In a Friday update to the SEC’s frequently asked questions issued in March, the agency said that the latest interpretation of its rules on crypto was non-binding, had “no legal force or effect, [did] not alter or amend applicable law, and [did] not create any new or additional obligations for any person.” The FAQs would apply to how the SEC considers digital asset products falling under the Howey test for investment contracts. 

According to the SEC, token issuers could conduct buyback programs for customers provided “a crypto system is functional and has no central party” that would not necessarily qualify as “a representation or promise to undertake essential managerial efforts,” i.e., not an investment contract under federal securities laws. 

The regulator issued similar guidance for crypto networks, saying that a system that was “functional, services to secure, maintain, improve, or enhance such a system or its functionality, or to facilitate network effects” would not necessarily satisfy the agency’s Howey test. Staking receipt tokens, similarly, would not always classify as securities, according to the agency.