Crypto: SEC Draws a New Line for Non-Security Tokens

The SEC brings new clarifications to the crypto market. In an FAQ published on September 25, its staff details the treatment of tokens, liquid staking, buyback programs and promises made by issuers. A crypto asset that is not itself a security can still be sold under an investment contract. It all depends in particular on what the issuer promises to buyers.

Crypto also depends on promises made to buyers

The SEC had already clarified in March the treatment of several categories of crypto-assets. The new answers go into more detail. They focus less on the name given to the token than on the conditions under which it is offered to investors.

Describing the functions already available on a network probably does not, by itself, constitute a promise of “essential managerial efforts.” A project can also mention future features without necessarily crossing this line. Especially when its discourse does not imply that these developments should generate profit for buyers.

The problem appears when the investor buys counting on the work promised by a team to increase the value of his investment. In this case, even a crypto asset that is not itself a financial security can be linked to an investment contract subject to U.S. federal laws.

The distinction is quite concrete. An issuer may sell a token today, promise to build a network tomorrow and present this work as the expected source of future gains. As long as this essential promise remains attached to the asset, some subsequent sales may still fall under securities law.

The SEC also clarifies that the fulfillment of promises of functionality or decentralization must be evaluated according to what the issuer himself had announced to buyers.

Staking and buybacks receive more precise answers

Staking occupies an important part of the FAQ. A “Staking Receipt Token” may simply serve as a receipt representing ownership of a digital asset placed in staking. Under the circumstances described by the SEC, if the underlying asset is a digital commodity not associated with an investment contract, this receipt may be classified as a digital tool. When it is issued directly by a liquid staking protocol, it can also be classified as a digital commodity.

However, this receipt should not add new financial benefits. The issuer cannot freely use the deposited asset, lend it, pledge it or rehypothecate it.

The subject is not new. The SEC’s previous positions on liquid staking had already sparked debates in the crypto industry.

Token buybacks also receive their own response. The subject is growing: crypto projects have dedicated nearly 640 million dollars to token buybacks in 2026.

For a network already functional, announcing the buyback of a non-security token does not constitute, according to the staff, a promise of essential managerial efforts. The situation changes for a network that is not yet functional. If the issuer presents his buyback program as a way to create yield for holders, the announcement may fall within the analysis of the investment contract.

The SEC sets limits to its own clarifications

This FAQ is not a new crypto law. The SEC says so at the beginning of the document: the nine answers represent the opinions of the staff of its Division of Corporation Finance. They do not constitute a rule or an official statement of the Commission. They have no legal force and create no new obligation. The Commission itself has neither approved nor disapproved them.

Another clarification for exchanges: simply offering a secondary market for a crypto does not automatically turn a platform into a “promoter.” It must meet the definition provided by Rule 405 of the Securities Act.

The American framework is nevertheless becoming more detailed. After mining, staking, stablecoins or even the rules applicable to tokenized securities, the SEC now goes down to the level of commercial promises, staking receipts and buyback mechanisms. For crypto projects, a few words in a presentation can therefore count as much as the technical properties of the token.