SEC’s Crypto FAQ is Guidance Not Law

The U.S. Securities and Exchange Commission (SEC) has released an updated set of frequently asked questions (FAQ) regarding the legal status of crypto assets. Renato Mariotti, a former federal prosecutor, warns that this guidance should not be mistaken for binding legal protection. He emphasizes that the FAQ is merely non-binding guidance and should be used as a reference rather than a shield against future regulatory actions.

On September 25, 2026, the SEC’s Division of Corporation Finance published the FAQ, which addresses key issues like staking receipt tokens, buyback programs in decentralized networks, and the impact of marketing communications on the Howey test. Three days later, on September 28, 2026, the FAQ was revised, highlighting the fluid nature of the guidance. The document avoids naming specific crypto assets or protocols, leaving companies to interpret how the principles apply to their own products.

Mariotti points out that the FAQ lacks legal force and is not officially approved by the full Commission. It reflects the views of SEC staff rather than established rules. The rapid revisions to the FAQ underscore its interpretive and non-final nature. The guidance builds on an Interpretive Release from March 17, 2026, and follows a proposed rulemaking on crypto assets from August 18, 2026, which has yet to be finalized.

For crypto builders and investors, the practical implication is that compliance decisions remain context-dependent. Without binding rules, companies must rely on staff commentary to guide their disclosures and token designs. The industry is also watching for updates to the proposed rulemaking and further revisions to the FAQ, as these changes could provide more clarity. Until Congress or the full Commission issues binding regulations, the crypto sector is navigating with guidance that its authors acknowledge is not the law.