SEC Crypto Rules 2026: Why Single-Jurisdiction Crypto Structuring No Longer Works

The U.S. Securities and Exchange Commission’s March 2026 interpretation on the application of federal securities laws to certain crypto assets is not merely another incremental statement in an already crowded field of digital-asset commentary. Rather, it is a material attempt to redraw, with greater precision than the market has seen in years, the line between crypto assets that are not themselves securities, arrangements that may nevertheless constitute investment contracts, and tokenized instruments that remain securities despite their migration onto distributed ledger infrastructure. The SEC issued the interpretation on 17 March 2026, identified as Release No. 33-11412 / 34-105020, and the CFTC joined it to signal that the Commodity Exchange Act would be administered consistently with that interpretation where relevant.

For market participants, this matters for one reason above all others: the Commission is now trying, at least at the level of formal interpretation, to replace category confusion with category discipline. The accompanying SEC fact sheet makes clear that the agency’s objective was threefold, namely to establish a token taxonomy, to explain when a non-security crypto asset can become wrapped in an investment contract and when that contract can come to an end, and to clarify the treatment of mining, staking, wrapping and certain airdrops.

That shift is commercially consequential because for too long, especially in cross-border practice, many projects have proceeded on the basis of an oversimplified binary that was never doctrinally sound: either “the token is a security” or “the token is not a security.” The SEC’s new framework is more sophisticated and, in practical terms, more demanding. It treats the legal analysis as layered. One must distinguish between the asset as such, the manner of issuance, the promises or representations surrounding the issuance, the rights embedded in the instrument, the function of the protocol, the role of intermediaries, and the jurisdiction in which the product is marketed, distributed, traded, custodied or monetised. That is precisely the direction in which serious legal structuring should have been moving all along.

A central feature of the interpretation is the taxonomy itself. The Commission classifies crypto assets into categories that include digital commodities, digital collectibles, digital tools, certain stablecoins, and digital securities or tokenized securities. According to the SEC’s description, digital commodities, digital collectibles and digital tools are not securities in themselves; certain “payment stablecoins” described in the GENIUS Act framework are also treated as non-securities; and tokenized securities remain securities, notwithstanding their crypto format (substance over form).

For issuers and infrastructure providers, the decisive point lies not in the labels but in the legal architecture beneath them. A token does not become harmless because a team calls it a utility token. Nor does an otherwise functional crypto asset become permanently trapped within securities law merely because it was once sold with promotional language that invited purchasers to expect profit from managerial efforts. The SEC expressly addresses how a non-security crypto asset may become subject to an investment contract if it is offered with representations or promises that induce an investment of money in a common enterprise with an expectation of profits from essential managerial efforts, and it also addresses how that arrangement may cease, whether because the relevant commitments were fulfilled or because they failed.

That point, if taken seriously, is potentially one of the most important elements of the 2026 interpretation. It suggests that the legal perimeter in the United States may no longer be framed as though a historical fundraising event irreversibly determines the status of a token for all future purposes and under all future factual circumstances. Yet that does not mean that issuers may now relax. On the contrary, it means that the factual record, the sequencing of the project, the wording of the white paper, the economic rights, the governance mechanics, the technical roadmap, the treasury narrative, and the communications strategy have become even more important, because the existence, continuation and termination of an investment contract become matters that must be documented, evidenced and defended.

The interpretation is also notable for what it says about specific crypto activities. The SEC states that protocol mining, protocol staking and the wrapping of a non-security crypto asset, as described in the interpretation, do not involve the offer and sale of a security, and that certain airdrops do not involve an “investment of money” under the Howey analysis. This does not amount to a blanket amnesty for every business model that uses those words in its marketing material, because the scope depends on the facts as described by the SEC. Nevertheless, it substantially improves the analytical position of projects whose core economic reality is protocol participation rather than capital raising dressed up as decentralization (“decentralization theater”).

The tokenized-securities side of the picture is equally important, particularly for banks, brokers, custodians, fund structures, wealth platforms, family offices, fintechs and corporate groups exploring the digital issuance or digital representation of financial instruments. In January 2026, the SEC’s Divisions of Corporation Finance, Investment Management and Trading and Markets stated that a tokenized security is still a security if what has been placed on-chain is, in substance, a financial instrument already enumerated in the federal securities laws. The staff further distinguished between issuer-sponsored tokenized securities and third-party models, including custodial tokenized securities and synthetic structures such as linked securities or tokenized security-based swaps.

This is precisely where many market participants continue to make costly category errors. Putting a share, bond, note, entitlement or derivative exposure into token form does not dissolve the underlying legal regime. In many cases it merely overlays technology onto an existing regulatory object. The SEC staff expressly states that the format of issuance does not, by itself, alter the application of the federal securities laws and that offers and sales of securities remain subject to registration requirements unless an exemption is available. For any institution considering “tokenization” as a compliance-light rebranding exercise, that should be read as a warning, not an invitation.

Stablecoins illustrate the same principle from another angle. In April 2025, the SEC’s Division of Corporation Finance stated that certain USD-redeemable, reserve-backed “Covered Stablecoins,” as described in that statement, are not offered and sold as securities under the federal securities laws in the circumstances addressed there. However, the statement is expressly limited to specific fact patterns and states that a definitive determination remains fact-sensitive. Thus, while the 2026 fact sheet places “GENIUS Act” payment stablecoins in the non-security category, the broader lesson is not that all stablecoins are outside securities law, but that reserve design, redemption mechanics, marketing profile, yield features and asset backing remain legally determinative.

From a Liechtenstein and wider European perspective, the significance of the U.S. move lies not in any automatic transplantation of American categories into European law, but in the fact that serious token businesses are rarely confined to a single legal system. Regulation (EU) 2023/1114, MiCAR (Markets in Crypto Assets Regulation), establishes uniform rules for issuers of crypto-assets not already covered by other EU financial-services legislation and for crypto-asset service providers. Liechtenstein, meanwhile, has operated under the TVTG (Token and Trusted Technology Service Providers Act) since 1 January 2020, with the FMA responsible for the registration and ad hoc supervision of TT service providers; the FMA.

That combination produces a strategic consequence which many founders and even some regulated firms still underestimate: a project may be well structured under MiCAR and Liechtenstein law, yet still create U.S. securities-law exposure through its token sale narrative, platform access design, secondary-market strategy, incentive mechanics, treasury communications or distribution footprint. Conversely, a product that is more defensible in the United States after the SEC’s 2026 interpretation may still require white-paper, licensing, consumer-protection, AML, organizational and conduct analysis under MiCAR, financial-instrument law, e-money law, payment-services law, prospectus law or others in Europe. The age of single-jurisdiction crypto structuring is over. What remains is perimeter management across several regimes at once.

For that reason, the most useful practical response to the SEC’s interpretation is not celebratory rhetoric but disciplined legal engineering. First, projects should separate the analysis of the asset from the analysis of the offering, because a functional token and a securities offering involving that token are not the same legal object. Secondly, teams should rework public communications so that token utility, network function, governance design and economic rights are described with precision and without the kind of loosely aspirational language that can later be recast as a promise of managerial value creation. Thirdly, any tokenization project involving equities, bonds, notes, fund interests, receivables, synthetic exposure or custody-linked representations should assume, until proven otherwise, that existing securities, custody, market-infrastructure and conduct regimes remain highly relevant. Fourthly, stablecoin and payment-token structures should be tested not only for reserve sufficiency and redemption integrity, but also for whether yield, rewards, rebasing or ancillary commercial features alter the legal character of the instrument. Fifthly, every internationally distributed project should conduct a jurisdiction-by-jurisdiction perimeter mapping exercise before launch and not after investor onboarding begins.

This is exactly the sort of moment in which high-end counsel creates measurable enterprise value. In practice, the best legal work in digital assets is rarely about saying “yes” or “no” to a token. It is about redesigning the transaction, disclosures, governance, distribution model and control environment so that the business can proceed with a risk profile that is commercially intelligible, regulatorily defensible and operationally sustainable and resilient. For founders, exchanges, tokenization platforms, fiduciary structures, investment vehicles and financial institutions seeking to build from Liechtenstein into the EEA and beyond, that means integrating U.S. securities analysis, MiCAR perimeter review, legal structuring under Liechtenstein national law, AML architecture, custody design and documentation strategy from the outset rather than treating them as separate workstreams.

For Bergt Law, this is not an abstract academic point, but the daily reality of modern cross-border legal advisory work in fintech, blockchain, tokenization, financial regulation, corporate & commercial matters and contentious regulatory and dispute matters. The firms that will benefit most from the SEC’s 2026 clarification are not those that read the headline and assume the hard part is over, but those that understand that greater clarity usually increases, rather than reduces, the premium on careful structuring. In a market that is becoming more mature, more international and more exacting, legal precision is no longer a cost centre; it is a competitive asset.

Disclaimer: This article expresses only the authors’ general views and professional opinion as of the date of publication and is provided for general informational purposes only. It does not constitute legal advice or a legal opinion for any specific matter and must not be relied upon as such. In particular, it does not constitute U.S. legal advice, U.S. regulatory advice, U.S. securities law advice, or advice on any other foreign law. Any references to U.S. law or practice are purely contextual and comparative. Bergt Law is a Liechtenstein-based law firm. For U.S. law or other foreign-law issues, suitably licensed local counsel should be consulted; where appropriate, Bergt Law may coordinate with trusted licensed partner firms. No attorney-client relationship is created by this publication. Any liability is excluded to the fullest extent permitted by law.

Sources: FACT SHEET Application of the Federal Securities Laws to Certain Types of Crypto Assets and Certain Transactions Involving Crypto Assets, U.S. SECURITIES AND EXCHANGE COMMISSION.

Executive Summary:

• The SEC’s 17 March 2026 interpretation is a meaningful attempt to classify crypto assets by function and legal character, while aligning parts of the analysis with the CFTC’s commodity-law perspective.
• The new U.S. approach distinguishes between the crypto asset itself and the surrounding transaction, meaning that a non-security crypto asset can still be involved in an investment contract depending on the promises, representations and economic realities of the offering.
• The SEC’s taxonomy identifies digital commodities, digital collectibles, digital tools and certain stablecoins as non-securities, while digital securities or tokenized securities remain securities.
• The interpretation indicates that protocol mining, protocol staking, wrapping of a non-security crypto asset and certain airdrops may, in the described circumstances, fall outside the offer-and-sale of securities analysis.
• Tokenization does not, by itself, neutralize securities regulation; where the underlying instrument is a security, the federal securities framework generally remains relevant despite the on-chain format.
• In Europe, MiCAR provides a harmonised framework for issuers and CASPs, while Liechtenstein’s TVTG continues to govern TT service provider registration and supervision in its own national logic outside of MiCAR’s scope, which means cross-border projects must manage multiple legal perimeters at once.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.