The US Securities and Exchange Commission and Commodity Futures Trading Commission issued new joint guidance on March 19 aimed at clarifying how securities laws apply to digital assets, marking a shift from prior enforcement-heavy approaches.
The update is seen as an improvement from the Gary Gensler era, particularly on issues like staking and meme coins, but legal experts say it stops short of delivering the full clarity the industry needs.
“The SEC’s new guidance is a welcome development and a marked improvement from the Gensler days,”
Gibson Dunn attorneys said, while noting that key ambiguities remain.
A central issue is the SEC’s interpretation of the Howey test, where the agency declined to clearly define whether an “investment contract” requires a formal contractual relationship between issuer and investor.
Instead, the guidance maintains a flexible “facts and circumstances” approach, allowing regulators to infer investment contracts from marketing materials, public statements and investor expectations.
The SEC also provided limited clarity on secondary-market trading, leaving uncertainty over when digital assets traded on exchanges remain subject to securities laws.
Analysts warn that without clearer rules, the industry remains exposed to future regulatory overreach, litigation risks and inconsistent enforcement despite the agency’s softer stance.