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SEC Staff FAQ Clarifies How Securities Laws May Apply to Staking Receipt Tokens and Related Crypto Structures
CoinDesk reports that on Sept. 25, the U.S. Securities and Exchange Commission's Division of Corporation Finance published a new FAQ outlining how existing securities laws may apply to staking-related tokens, redeemable wrapped assets, token repurchases, and networks that have become functional. The agency stressed the guidance reflects staff views only, does not create new rules, and is not a formal Commission action.
Staking receipts and wrapped tokens: ownership and custody are key
SEC staff said a token may be treated as a "digital instrument" rather than a security when it simply evidences ownership of an underlying digital asset, subject to specific conditions. The analysis turns on the rights the token conveys and how the underlying asset is held—not the token's label.
Under the staff's framework, the receipt token should only confirm that a defined quantity of assets has been deposited, with the holder retaining ownership. It must not change the underlying asset's original rights or add financial returns. The issuer also must not treat the deposited assets as its own or transfer, lend, pledge, or otherwise use them, and the assets cannot be exposed to claims from the issuer's creditors. The staff said the same approach applies to redeemable wrapped assets.
Protocol-based liquid staking may require separate analysis
For tokens issued by protocol-based liquid staking providers, staff said they may, in certain circumstances, be viewed as "digital commodities" when their value is tied to the performance of an already-operational crypto system and to market supply-and-demand dynamics.
The FAQ adds that even if holders receive rewards generated by the underlying staked assets, that does not necessarily mean the voucher token itself creates the right to rewards or determines the amount. The central question, staff said, is whether the token introduces new yield commitments.
Functional networks and shifting legal analysis
The staff also addressed tokens that may have been sold in early stages alongside investment contracts, noting the securities analysis may evolve as a network becomes functional. Once a crypto system is operational, ongoing activities such as cybersecurity, maintenance, upgrades, development funding, and efforts to grow usage do not automatically amount to the "essential managerial efforts" investors rely on under the Howey test. Even an issuer's commitment to keep providing these services does not, by itself, satisfy Howey.
Whether a network has achieved "functionality," the staff said, depends on the specific commitments made to buyers before purchase. The FAQ cautions against assuming a token has moved beyond its original investment-contract analysis without weighing the project team's early statements.
Token buybacks: facts and timing matter
On repurchases, staff distinguished between pre-functional and functional stages. If a crypto system is already functional, an issuer's announcement of a buyback of a non-security token does not by itself amount to a promise to generate returns through managerial efforts. Before functionality, staff said, describing a buyback as producing income or returns could affect the securities-law assessment.
On marketing, the FAQ draws boundaries: describing current network uses generally is not a promise of returns, and discussing potential future features in broad terms—without tying them to profits—is less likely to be viewed as an "essential managerial efforts" commitment.
Secondary-market listing is not automatically promotion
The FAQ also states that a U.S. platform listing a token for secondary trading does not automatically become a "promoter" of that token. Whether it is a promoter depends on whether it meets the definition under Rule 405 of the Securities Act.
The SEC emphasized the FAQ has no legal effect, does not change federal securities laws, and has not been formally approved or disapproved by the Commission. The stated purpose is to clarify parts of the crypto assets framework released in March.