The U.S. Securities and Exchange Commission (SEC) has consistently maintained that the classification of tokenized assets must prioritize existing securities law over the novelty of the underlying blockchain technology. This position, frequently articulated by SEC Chairman Gary Gensler, asserts that the regulatory framework established decades ago is sufficiently robust to govern modern digital assets.
Central to the SEC’s approach is the application of the Howey Test. Under this four-pronged test, if a token represents an investment of money in a common enterprise with the expectation of profits to be derived from the efforts of others, it is categorized as an investment contract and, therefore, a security. The technical architecture—whether the asset is on a distributed ledger, highly decentralized, or immutable—is deemed irrelevant to this foundational legal analysis.
This ‘securities first’ mandate significantly impacts issuers and platforms handling tokenized real-world assets (RWAs), equity, or fractionalized ownership. Issuers must ensure mandatory compliance with federal securities laws, including registration statements, stringent disclosure requirements, and adherence to broker-dealer and clearing agency regulations. The SEC views many tokens currently trading as unregistered offerings, leading to numerous recent enforcement actions against entities failing to prioritize regulatory compliance.
While the SEC acknowledges the efficiency and potential for improved settlement processes offered by tokenization, it firmly separates technological advancement from investor protection requirements. The message remains clear: innovation cannot be a shield against regulatory oversight. Companies operating in the digital asset space are expected to comply with existing securities laws before deploying novel technological solutions, ensuring that investor safeguards remain paramount.
Source: SEC Says Tokenized Assets Are Securities First, Technology Second
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