入门 SEC issues non-binding crypto token guidance amid regulatory fragmentation
Quick answer
The U.S. Securities and Exchange Commission (SEC) released new staff-level guidance on September 29, 2026, outlining how its staff interprets existing securities laws as applied to digital assets — a move that mirrors, but does not legally bind, the Commodity Futures Trading Commission’s (CFTC) 2023 staff advisory. This is not rulemaking, nor does it carry enforcement authority. It reflects internal staff views only, applies exclusively to tokens offered in primary sales, and excludes staking, DeFi protocols, and secondary-market trading. No numerical thresholds, token counts, or market-cap benchmarks are defined. The guidance cites no empirical data or enforcement statistics (CoinTelegraph, 2026-09-29).
What exactly did the SEC publish — and what doesn’t it do?
On September 29, 2026, the SEC’s Division of Corporation Finance and Division of Enforcement jointly issued a 12-page staff statement titled ‘Digital Asset Securities: A Framework for Analysis’. It reiterates the Howey Test as the sole legal standard for determining whether a token is an investment contract — and therefore a security — under U.S. law. Crucially, the document explicitly states it ‘does not constitute rulemaking, interpretive release, or formal Commission action’. It carries no force of law. Unlike the CFTC’s 2023 advisory — which clarified its jurisdiction over Bitcoin and Ethereum as commodities — the SEC’s guidance avoids defining any digital asset as non-security. It offers no safe harbors, no sunset clauses, and no quantitative criteria (e.g., no mention of decentralization metrics, liquidity ratios, or developer concentration thresholds). The source article notes this omission leaves ‘clarity fail’ as the operative outcome (CoinTelegraph, 2026-09-29).
How does this affect different assets and market participants?
Tokens sold in initial offerings — especially those with active development teams, tokenomics tied to platform revenue, or promises of future functionality — face heightened scrutiny under the new staff lens. For example, tokens launched via SAFTs (Simple Agreements for Future Tokens) or with vesting schedules for team allocations now trigger stronger presumption of reliance on managerial efforts. In contrast, fully decentralized networks with no ongoing protocol-level development — like mature forks of Bitcoin Core — remain outside the guidance’s practical scope. Exchanges listing tokens face no new obligations per se, but may see increased risk in delisting decisions if the SEC later brings enforcement actions against issuers they host. Wallet providers and node operators are unaffected. Institutional investors must now document more rigorously why a token purchase meets the ‘not a security’ threshold — particularly when engaging with tokens that have governance rights but lack on-chain voting execution. The guidance does not address stablecoins, NFTs, or real-world asset (RWA) tokens — all left in regulatory limbo (CoinTelegraph, 2026-09-29).
Where is the uncertainty — and what risks follow?
Three gaps dominate: First, the guidance applies only to staff interpretation — meaning a future SEC Chair could withdraw or revise it unilaterally. Second, it contradicts judicial precedent in at least two pending district court cases where judges ruled certain tokens were not securities despite centralized issuance (e.g., SEC v. Ripple, SEC v. Coinbase appeals still pending as of late 2026). Third, it creates jurisdictional friction with the CFTC: the CFTC treats ETH as a commodity post-Merge; the SEC guidance offers no carve-out for proof-of-stake tokens with functional utility. Market impact is indirect but material: legal budgets for token projects rose 22% quarter-on-quarter among U.S.-based Web3 startups (data from PitchBook, Q3 2026), while cross-border token issuers increasingly route primary sales through Singapore and Switzerland to avoid dual-regulator exposure.
Frequently asked questions
Does this guidance make Bitcoin or Ethereum illegal securities?
No. The guidance does not classify any specific asset. It reaffirms the Howey Test as the analytical tool — and both Bitcoin and Ethereum have been repeatedly treated as commodities by the CFTC and acknowledged as such in multiple federal court rulings. The SEC has never filed an enforcement action alleging BTC or ETH are securities.
Can developers rely on this guidance to launch a token safely in the U.S.?
No. The document warns explicitly: ‘This statement is not binding on the Commission, courts, or other parties.’ Developers launching tokens in the U.S. must still conduct independent legal analysis, consider registration or exemption pathways (e.g., Regulation D, Regulation S), and prepare for potential enforcement regardless of staff views. Relying solely on this guidance carries material legal risk.
Risk warning and disclosure
Cryptocurrency investments are volatile and carry substantial risk of loss. This article reports factual developments only — it does not constitute legal, tax, or investment advice. Past performance is not indicative of future results. The SEC’s 2026 staff guidance has no binding effect and may be superseded without notice. Cryptodlhub receives compensation for traffic directed to /go/binance-download/, but does not endorse Binance’s services, products, or compliance posture. Readers should consult qualified professionals before making financial decisions. For foundational concepts, see our Glossary and News sections. To compare asset values across chains, use our Convert tool. Download instructions for the Binance app are available at /go/binance-download/.
Risk warning and disclosure
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