The SEC brings new details 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 as part of an investment contract. It all depends on what the issuer promises buyers.
In brief
- Promoting current uses of a network is generally not enough to create an investment contract.
- Certain tokens representing assets placed in staking can be considered as digital tools or commodities.
- A buyback program can become sensitive if a non-functional project presents it as a source of return.
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 are less interested in the name given to the token than in the conditions under which it is offered to investors.
Describing the already available functions of a network probably does not constitute, on its own, a promise of “essential managerial efforts”. A project can also discuss future features without necessarily crossing this limit. Particularly when his speech does not suggest that these developments must generate a profit for buyers.
The problem arises when the investor buys relying 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 US federal laws.
The distinction is quite concrete. An issuer can sell a token today, promise to build a network tomorrow, and present this work as the expected source of future earnings. As long as this essential promise remains attached to the asset, certain subsequent sales may still fall under securities law.
The SEC specifies also that the realization of promises of functionality or decentralization must be evaluated according to what the issuer itself had announced to buyers.
Staking and redemptions get more precise answers
Staking occupies a significant part of the FAQ. A “Staking Receipt Token” can simply serve as a receipt representing ownership of a staking digital asset. Under the circumstances described by the SEC, if the underlying asset is a digital commodity that is not associated with an investment contract, this receipt may be classified as a digital instrument. When issued directly by a liquid staking protocol, it can also be classified as a digital commodity.
This receipt must not, however, add any new financial benefits of its own. The issuer cannot freely use the deposited asset, lend it, pledge it or remortgage it.
The subject is not new. The SEC’s previous positions on liquid staking had already caused debate in the crypto industry.
Token redemptions also receive their own response. The subject is gaining momentum: crypto projects have dedicated nearly $640 million to token redemptions in 2026.
For an already functional network, announcing the repurchase 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 its repurchase program as a means of creating returns for holders, the announcement may be included in the analysis of the investment contract.
The SEC places limits on its own clarifications
This FAQ is not a new crypto law. The SEC says it right at the start of the document: the nine responses represent the opinions of staff in its Division of Corporation Finance. They constitute neither a rule nor an official statement from the Commission. They have no legal force and do not create any new obligations. The Commission itself neither approved nor disapproved them.
Another clarification for exchanges: simply offering a secondary market for a crypto does not automatically transform a platform into a “promoter”. It must meet the definition provided by Rule 405 of the Securities Act.
The American framework nevertheless becomes more detailed. After mining, staking, stablecoins and even the rules applicable to tokenized securities, the SEC is now descending to the level of commercial promises, staking receipts and redemption mechanisms. For crypto projects, a few words in a presentation can therefore count as much as the technical properties of the token.
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