US securities staff have offered a more precise reading of how existing law applies to two common crypto practices: token repurchase programs and tokens issued in liquid staking. In staff-level FAQs released September 25, 2026, the SEC’s Division of Corporation Finance said that, in defined circumstances, those activities do not themselves create an investment contract under the Howey analysis.
The answers are staff views only.
They are not Commission-approved rules and do not change the statute.
The buyback discussion turns on whether a network is already operating.
When a crypto system is functional and the token is not itself a security, announcing a repurchase—for treasury management, supply reduction, protocol burns, or rebalancing—does not amount to a pledge of essential managerial effort.
That kind of pledge is what can convert a token offering into a security.
The picture changes if the network is still unfinished.
In that setting, presenting a buyback as a source of yield or return for holders can look like a promise that profits will depend on the issuer’s work.
Staff applied a similar fact-specific lens to staking receipt tokens.
When a receipt simply evidences ownership of an underlying digital commodity that is not subject to an investment contract, the receipt can be treated as a digital tool.
It records a deposit; it does not create new financial rights.
A receipt token issued by a protocol-based liquid staking provider may instead be viewed as a digital commodity when its value tracks the operation of a working system and ordinary supply and demand.
In both cases, the analysis depends on the underlying asset and on whether anyone is selling entrepreneurial effort rather than a receipt or a commodity.
The FAQs also address what happens after a network is live.
Once a system is functional, work to secure, maintain, improve, or expand it—including funding development—does not count as the kind of essential managerial effort that keeps a token wrapped in an investment contract.
Promoting current utility, as opposed to promising future profits from a team’s unfinished plan, generally does not create that contract either.
The staff repeatedly stresses that outcomes still turn on facts: how a project was marketed, who controls it, and whether purchasers reasonably expect profit from others’ efforts.
The guidance arrives as the Commission tries to map digital assets onto existing securities law rather than wait for a new statute.
That effort sits against a stalled legislative backdrop.
The Digital Asset Market CLARITY Act, which would have drawn sharper lines between SEC and CFTC authority over digital commodities and investment-contract assets, failed a Senate procedural vote in mid-September 2026 and is not moving for now.
Industry groups and some lawmakers had hoped the bill would replace years of case-by-case enforcement with a market-structure statute.
That path is closed for this Congress.
Both agencies have said they will not sit idle.
SEC and CFTC leadership have publicly committed to use current statutes, exemptive tools, joint staff statements, and coordinated projects to keep digital-asset activity inside US markets.
Earlier joint work already addressed spot crypto products on registered venues and a broader taxonomy that treats many functioning network tokens as digital commodities or tools rather than securities.
The new FAQs are another increment in that approach: they do not rewrite Howey, but they tell market participants how staff apply it to buybacks, liquid staking receipts, and post-launch network work.
For issuers, the practical message is narrower than a blanket green light.
Live networks that treat tokens as commodities or tools have more room to run ordinary treasury operations and to keep building without converting those actions into a securities offering.
Pre-launch projects that sell tokens while pitching buybacks as yield still face the older Howey risk.
Liquid staking providers whose tokens are true receipts for non-security assets sit closer to commodity or tool treatment; discretionary or yield-packaged products may not.
Because the FAQs lack the force of law, firms still need counsel and fact-specific analysis.
The larger policy story is incrementalism.
Congress has not supplied a comprehensive market-structure law.
Regulators say they will keep using the authority they already have to reduce uncertainty and keep innovation onshore. The September 25 staff answers are one more attempt to draw those lines in public, in writing, and in terms that map onto Howey rather than onto a bill that has not become law.