On March 17, the U.S. Securities and Exchange Commission and the Commodity Futures Trading Commission jointly issued the most significant piece of regulatory guidance to date on the classification of crypto assets under U.S. federal securities laws. Released as SEC Release Nos. 33-11412 and 34-105020, the interpretation provides for the first time a comprehensive taxonomy of crypto assets from the relevant United States regulators, classifying them into five functional categories—digital commodities, digital collectibles, digital tools, stablecoins and digital securities—and analyzes each category under the statutory definition of “security.” The guidance also explains how a non-security crypto asset may become subject to an investment contract, and critically, how it may later separate from that investment contract and cease to be subject to federal securities laws. In addition, the SEC clarified that protocol mining, protocol staking, the wrapping of non-security crypto assets and certain airdrops do not involve the offer and sale of securities. The CFTC joined the release to confirm that it will administer the Commodity Exchange Act consistently with the interpretation, and that certain non-security crypto assets could meet the definition of “commodity” under the CEA.
The guidance is unquestionably a watershed moment. For an industry that has spent years laboring under profound regulatory uncertainty—where market participants could not reliably determine whether the assets they were creating, trading, or holding were securities or commodities—the joint interpretation offers the first comprehensive analytical framework from the agencies themselves. Yet the guidance is interpretive in nature, not a formal rulemaking, and it explicitly does not supersede the Howey test, which remains binding Supreme Court precedent. This article examines the substance, significance and limitations of the March 2026 guidance, with particular attention to the open questions that remain for practitioners, market participants and courts.
Author:
John Guild, Partner, jguild@bellnunnally.com