Five Categories, One Missing Vote: US Digital-Asset Regulation in 2026

For most of the last decade the operative question for a token issuer was which regulator would sue first. In 2026 the agencies have answered a different question — what a token is — while Congress has still not answered whether that answer outlives the administration that produced it.

The current framework was assembled quickly and in a deliberate order. A January 2025 executive order directed the agencies to make the United States a viable home for digital-asset markets; a President's Working Group report followed in July 2025 recommending SEC and CFTC harmonisation. The GENIUS Act was signed on 18 July 2025, putting payment stablecoins on a federal footing with a one-to-one reserve requirement and a prohibition on paying interest to holders. On 31 July 2025 SEC Chairman Paul Atkins launched Project Crypto, an agency-wide effort to fit securities regulation to on-chain markets. Michael Selig, previously chief counsel to the SEC's Crypto Task Force, was sworn in as CFTC chairman on 22 December 2025 — a deliberate piece of continuity, since the same person had been drafting the SEC side of the harmonisation. The two agencies signed a memorandum of understanding on 11 March 2026 committing to joint interpretations across six areas.

Six days later came the substance. On 17 March 2026 the SEC, joined by the CFTC, issued an interpretive release sorting crypto assets into five categories: digital commodities, digital collectibles, digital tools, payment stablecoins and digital securities. Four of the five are generally not securities. Digital commodities derive value from the programmatic operation of a functioning system and from supply and demand, rather than from the essential managerial efforts of others. Digital collectibles are NFT-style assets tied to art, media, fan engagement or in-game items, designed to be collected or used. Digital tools are utility instruments — access, membership, tickets, credentials — where the economic substance is use. Payment stablecoins from permitted issuers are excluded by the GENIUS Act itself. Digital securities, including tokenised equity and debt, remain securities regardless of the wrapper. The release supersedes the SEC's April 2019 framework for investment-contract analysis of digital assets, and it is a formal acknowledgment that the Commission's broader theory — that the asset itself is the security — did not survive contact with the courts.

What the release does not do matters as much as what it does. It does not displace Howey; the analysis remains fact-specific, and the release is explicit that a transaction in an otherwise non-security asset can still be a securities transaction. It does not touch tax, anti-money-laundering obligations, bank regulation, or state money-transmitter licensing. It leaves parts of the secondary-market question open. And it is an interpretive release, not a rule: it binds nobody but the agencies that wrote it, and in a post-Loper Bright environment a court applying independent judgment can reach a different conclusion. A later Commission can revise it with a vote. Papering a deal on an interpretive position is a materially different risk posture from papering it on a statute, and the difference should be stated in the risk factors rather than assumed away.

The conditions that pull an asset back inside the securities laws are the ones worth memorising, because most of them are self-inflicted. Explicit issuer statements tying the asset's value to the issuer's future work create investment-contract exposure, and the release weighs timing, source, medium and specificity: representations made before or at sale, through the issuer's own channels, containing a concrete and actionable business plan. Fractionalising a collectible so that returns depend on a manager is an investment contract. Bolting yield, leverage or profit-sharing onto an otherwise inert asset changes the analysis entirely. Airdrops folded into a broader promotional campaign, or tied to other consideration, remain problematic. And the contract can travel: where secondary purchasers would reasonably expect the issuer's promises still to apply, the investment contract follows the asset — ceasing when the issuer has delivered on those promises or abandoned them.

That leaves the statute. The Digital Asset Market Clarity Act passed the House on 17 July 2025 by 294 to 134, with more than seventy Democrats voting in favour. The Senate Banking Committee advanced its version 15 to 9 on 14 May 2026, and the bill was placed on the legislative calendar on 1 June. It then stalled. The Senate adjourned on 8 August 2026 without a floor vote; before leaving, the majority leader filed cloture on the motion to proceed, setting a procedural vote for 15 September. Sixty votes are needed, the Banking and Agriculture Committee versions still have to be reconciled, and the working days before the midterm campaign are few. If it passes, the CFTC gains spot-market authority over digital commodities and the taxonomy stops depending on who chairs which commission. If it does not, the market spends another year building on guidance.

The practical posture for a business in the meantime is neither to ignore the guidance nor to treat it as settled law. Classify each asset you issue against the five categories and write down why, with the marketing materials attached to the file — the release keys off what the issuer said, so the record of what was said is the evidence. Keep the features that break the exemption out of the product unless you intend to register: no fractionalisation, no profit share, no yield. Assume the classification question will be asked again on an exit or a financing, by a diligence lawyer with the benefit of hindsight and possibly a different Commission's views. And treat September as a real date: term sheets and token-launch timelines drafted this summer should say what happens in either outcome.

Key Takeaways

• Four of the five categories in the March 2026 SEC–CFTC interpretive release — digital commodities, collectibles, tools and payment stablecoins — are generally not securities. Digital securities remain securities whatever the wrapper.
• The release supersedes the SEC's 2019 investment-contract framework but does not displace Howey, does not bind courts after Loper Bright, and can be revised by a future Commission.
• Most of what turns a non-security into a security is self-inflicted: pre-sale promises through official channels, fractionalisation, and bolted-on yield or profit-sharing.
• The CLARITY Act cleared the House in July 2025 and Senate Banking in May 2026, but the Senate adjourned in August 2026 without a floor vote. Cloture on the motion to proceed is set for 15 September.
• Until a statute passes, classification memos should be written to survive a change of administration, with the marketing record attached.