SEC and CFTC Issue Coordinated Crypto Asset Classification

April 2, 2026

SEC and CFTC Issue Coordinated Crypto Asset Classification

Charlotte Bohn, Cheryl Isaac, Jason Outlaw, Drew Rolle Alston & Bird + Follow Contact LinkedIn Facebook X Send Embed The Securities and Exchange Commission (SEC) and Commodity Futures Trading Commission (CFTC) issued guidance establishing a five-category crypto asset taxonomy and clarifying that some crypto assets are not securities. Our Securities Litigation, Financial Services, and White Collar, Government & Internal Investigations teams are monitoring the implications.

• The release categorizes crypto assets into five types and explains that activities such as mining and staking generally do not involve securities transactions
• Whether an investment contract exists depends on facts and circumstances, and a crypto asset may no longer be linked to that contract over time
• The guidance reflects increased coordination between the SEC and CFTC and indicates that certain crypto assets may fall under commodities regulations On March 17, 2026, the Securities and Exchange Commission (SEC), joined by the Commodity Futures Trading Commission (CFTC), issued an interpretive release clarifying how existing federal securities laws apply to certain crypto assets and transactions involving crypto assets. The release aligns with remarks made last year by SEC Chair Paul Atkins signaling a shift in the commission’s regulatory posture toward crypto regulation and the limits of its jurisdiction. It is significant not only for token classification under the federal securities laws, but also for U.S. crypto market structure more broadly, since it signals a coordinated SEC–CFTC framework for distinguishing securities from crypto assets that are not securities and for clarifying when such assets may be treated as commodities.

The SEC’s New Token Taxonomy

The release establishes a classification-driven framework for assessing crypto assets under the federal securities laws, creating a five-category taxonomy and explicitly noting that three categories are not securities.

The release describes five core categories of crypto assets:

• Digital commodities. Crypto assets that are intrinsically linked to and derive their value from the programmatic operation of a crypto system that is functional, rather than from the expectation of profits from the essential managerial efforts of others.
• Digital collectibles. Crypto assets designed to be collected and/or used and that represent or convey rights to artwork, music, videos, trading cards, in-game items, or similar content. These assets do not have intrinsic economic properties or rights such as passive yield or claims on future income, profits, or assets of a business.
• Digital tools. Crypto assets that perform practical functions, such as memberships, tickets, credentials, title instruments, or identity badges, are designed for use in connection with crypto systems.
• Payment stablecoins. Crypto assets designed to maintain a stable value relative to a reference asset such as the U.S. dollar. For permitted payment stablecoins subject to the GENIUS Act, the offer and sale of such assets does not implicate the offer and sale of a security.
• Digital securities. Financial instruments that fall within the definition of a security but are represented or maintained on a crypto network.

Investment Contracts and Crypto Assets

A central feature of the release is the SEC’s effort to distinguish between a crypto asset that is not a security and an investment contract associated with that asset. As Atkins noted last year, “once the investment contract can be understood to have run its course, or expires by its own terms,” trading in the token should not continue to be treated as a securities transaction solely because the token was originally issued as part of one.

The release largely adopts that view. In assessing whether a crypto asset that is not a security is subject to an investment contract, the SEC places substantial weight on how the issuer markets and promotes the arrangement, including the source, timing, and manner of any representations or promises about the asset. Explicit issuer statements in agreements, websites, official social media accounts, direct communications, regulatory filings, or white papers are highlighted as particularly relevant.

The release explains that a crypto asset that is not a security and is initially sold as part of an investment contract may not be subject to an investment contract—and the securities laws—indefinitely. Once purchasers no longer reasonably expect the issuer’s representations or promises to remain connected to the asset, the asset may “separate” from the investment contract.

The SEC identifies two principal paths to separation: (1) fulfillment of the issuer’s representations or promises; and (2) failure or abandonment such that purchasers no longer reasonably expect the issuer to perform the promised essential managerial efforts.

Mining, Staking, and Network Participation

The release addresses protocol mining and staking and concludes that these activities do not involve the offer and sale of a security.

As for self-mining and participation in mining pools, the release states that these activities result in rewards as payment for services to the network and not profits from the managerial efforts of others.

CFTC Coordination and Market Structure Implications

The release is notable in that it was jointly issued with the CFTC and indicates increasing coordination between the agencies.

It states that certain crypto assets that are not securities may fall within the definition of commodity under the Commodity Exchange Act. This is significant for market participants operating in spot, derivatives and intermediary markets.

The document also underscores that, as of January 29, 2026, “Project Crypto” became a joint SEC–CFTC effort intended to “harmonize federal oversight of crypto asset markets,” which strengthens the message that federal crypto policy is moving toward coordinated cross-agency classification and oversight rather than parallel, potentially inconsistent approaches.

This continued coordination is especially notable given the ongoing legislative debate over crypto market structure, including the CLARITY Act, which would shift substantial crypto regulatory responsibility to the CFTC and could supersede aspects of the release. In the interim, the SEC and CFTC are following their directive from the President’s Working Group on Digital Asset Markets to “use their existing authorities to provide fulsome regulatory clarity,” in the absence of congressional action.

Practical Implications for Market Participants

Although framed as interpretive guidance, the release is likely to become a central reference point for token structuring, crypto product design, and regulatory enforcement priorities going forward. It has immediate implications for issuers, trading platforms, custodians, brokers, and staking providers.

Market participants should:

• Revisit token classification frameworks. Firms should assess whether existing token reviews align with the release’s taxonomy, including how assets are defined across the five categories and whether internal classifications appropriately distinguish crypto assets that are not securities from digital securities.
• Evaluate issuer statements and marketing practices. Because the release places substantial weight on issuer representations and promises, firms should closely review white papers, website disclosures, social media statements, investor communications, and marketing materials for language that could create or prolong an expectation of profits based on managerial efforts.
• Assess a crypto asset’s “separation” from its investment contract. For crypto assets that may initially have been sold as part of an investment contract, firms should assess whether the relevant promises have been fulfilled, abandoned, or otherwise ceased to be reasonably connected to the asset, potentially supporting a “separation” analysis for later transactions.
• Consider CFTC-facing consequences. If an asset is more likely to be treated as a crypto asset that is not a security, that may increase the relevance of the Commodity Exchange Act and CFTC oversight, particularly for firms involved in derivatives, leveraged products, market intermediation, or platform operations. [View source.]

Send Print Report

Latest Posts

• California Jumps into AI Procurement with State Governing Principles in an Executive Order
• SEC and CFTC Issue Coordinated Crypto Asset Classification
• Patent Case Summaries | Week Ending March 27, 2026
• Compliance Deadlines for Digital Accessibility Under Section 504 of the Rehabilitation Act
• Class Action & MDL Roundup | 2025 Q4 – They Blinded Us With Scienter See more »

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.
Attorney Advertising.

©
Alston & Bird

Written by:

Alston & Bird Contact + Follow Charlotte Bohn + Follow Cheryl Isaac + Follow Jason Outlaw + Follow Drew Rolle + Follow more less

PUBLISH YOUR CONTENT ON JD SUPRA

• ✔ Increased readership
• ✔ Actionable analytics
• ✔ Ongoing writing guidance Join more than 70,000 authors publishing their insights on JD Supra

Start Publishing »

Published In:

Blockchain + Follow CFTC + Follow Cryptoassets + Follow Cryptocurrency + Follow Digital Assets + Follow Investment + Follow New Guidance + Follow Regulatory Oversight + Follow Securities and Exchange Commission (SEC) + Follow Securities Regulation + Follow Stablecoins + Follow Administrative Agency + Follow General Business + Follow Finance & Banking + Follow Science, Computers & Technology + Follow Securities + Follow more less

Alston & Bird on:

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra: Sign Up Log in ** By using the service, you signify your acceptance of JD Supra's Privacy Policy.* - hide - hide