SEC and CFTC Issue Joint Interpretation on How Securities Law Applies to Crypto-Assets

Why the boundary matters

Whether a crypto-asset is a security decides which agency supervises it, which disclosure obligations attach, and which registration a platform needs. Historically the answer came from applying the Howey test to the facts of a particular offer and sale — which is why the same asset can be characterised differently depending on the transaction, and why much of the operative guidance emerged from enforcement litigation rather than rulemaking.

What coordination changes, and what it does not

Two agencies publishing a joint interpretation is a meaningful shift from two agencies asserting overlapping jurisdiction. It gives market participants a common reference point.

It is still an interpretation. It does not have the force of statute, and it does not resolve the underlying question of whether Congress will legislate a split — which is what the CLARITY Act debate concerns.

Conisec does not characterise assets

We report what regulators publish. We do not tell readers whether a specific token is a security — that is a legal conclusion about a specific transaction, and getting it wrong has consequences for the reader. See our US jurisdiction page for the structure, and the agencies’ own publications for the substance.