Crypto: The SEC Clarifies the Status of Tokens, Staking, and Buybacks

The SEC provides new clarifications for the crypto market. In a 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 to buyers.

In Brief

• Promoting the current uses of a network generally does not suffice to create an investment contract.
• Some tokens representing assets placed in staking may be considered digital tools or commodities.
• A buyback program can become sensitive if a non-functional project presents it as a source of yield.

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 responses 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 of a network likely does not, by itself, constitute a promise of "essential managerial efforts." A project can also mention future functionalities without necessarily crossing this line. Especially when its discourse does not imply that these developments must generate profit for buyers.

The problem arises when the investor buys relying on the promised work by a team to enhance the value of their investment. In this case, even a crypto asset that is not itself a financial security can be tied to an investment contract subject to U.S. 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 gains. As long as this essential promise remains attached to the asset, certain 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 had announced to buyers.

Staking and Buybacks Receive 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 digital asset placed in staking. 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 can be classified as a digital tool. When issued directly by a liquid staking protocol, it can also be classified as a digital commodity.

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

The topic is not new. Previous positions of the SEC on liquid staking had already sparked debates in the crypto industry.

Token buybacks also receive their own response. The topic is gaining traction: crypto projects have dedicated nearly $640 million to token buybacks in 2026.

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

The SEC Sets Limits on Its Own Clarifications

This FAQ is not a new crypto law. The SEC states this at the beginning of the document: the nine responses 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 obligations. The Commission itself has 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 is becoming more detailed. After mining, staking, stablecoins, and the rules applicable to tokenized securities, the SEC is now delving into 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.