Is my token a security? Where US law stands in 2026

If you are issuing a token, the question that governs almost everything else is which regulator owns you. As of September 2026 the honest answer is that it depends, and that the framework meant to fix this is still unfinished.

Where the law actually stands

Stablecoins: settled, and it is the GENIUS Act

The GENIUS Act — Guiding and Establishing National Innovation for U.S. Stablecoins — was signed into law in July 2025. It created the first federal framework for payment stablecoins: who may issue them, the reserve backing required, and how issuers are supervised at federal and state level.

Through 2026 the agencies have been building the machinery. The OCC issued proposed rules in March 2026, and Treasury opened its own rulemaking, publishing proposed regulations on stablecoin issuance, offer and sale in the Federal Register in August 2026. The statute's effective date is tied to the earlier of a fixed backstop in January 2027 or a set period after final rules are issued.

Practical read: if you are issuing anything that functions as a payment stablecoin, the rules exist, they are being finalised now, and the compliance question is concrete rather than speculative.

Everything else: still unresolved

The Digital Asset Market Clarity Act — the CLARITY Act, H.R. 3633 — is the bill intended to divide jurisdiction between the SEC and the CFTC for digital assets generally. It passed the House in 2025. It has not passed the Senate and it is not law.

As of early September 2026 a Senate cloture vote is scheduled for September 15, 2026. It needs 60 votes, which requires meaningful cross-party support, and several substantive disputes remain open — including developer liability for decentralised protocols, treatment of yield on stablecoins, and ethics provisions. Whether it advances is genuinely uncertain. Check the current status before acting on anything here.

The test that still governs

Absent new legislation, whether a token is a security is analysed under the Howey test, from a 1946 Supreme Court case about orange groves. An investment contract exists where there is:

1. an investment of money,
2. in a common enterprise,
3. with a reasonable expectation of profits,
4. derived from the efforts of others.

The first two are almost always satisfied in a token sale. Cases turn on the third and fourth: did buyers expect the price to rise, and were they relying on an identifiable team to make that happen?

What tends to matter in practice

These are the factors that have repeatedly shown up in enforcement and litigation. None is decisive alone.

• How you marketed it. Talking about price appreciation, listings, roadmaps and returns is the fastest route to looking like a securities offering — even if the token is functional. Marketing language is evidence.
• Whether it does something today. A token needed now to use a working product is in a very different position from a token whose value depends on a future roadmap.
• How dependent it is on your team. Genuine decentralisation — where no identifiable group is essential to the enterprise's success — weakens the fourth Howey prong. Claiming decentralisation while a core team controls the treasury, upgrades and direction does not.
• Who you sold to and how. Broad public sales to retail buyers attract more scrutiny than sales to accredited investors under an exemption.
• Insider allocation and lock-ups. Large founder or investor allocations with short lock-ups look like an offering of investment interests.

If you need an actual answer

A written legal opinion on token classification from securities counsel is the standard deliverable, and it is the sort of thing exchanges, banking partners and institutional investors ask to see. It is not cheap, and it is one of the few places in this space where paying for expertise straightforwardly reduces risk.

What you should have ready before that conversation: your token's function and supply mechanics, every public statement and marketing asset, your cap table and allocation schedule, the jurisdictions of your team and your buyers, and any prior sales or airdrops.

Primary sources worth checking yourself

• H.R. 3633 — Digital Asset Market Clarity Act on Congress.gov, for current legislative status.
• SEC crypto assets resources, for the agency's current positions and actions.
• Treasury's proposed GENIUS Act regulations in the Federal Register, August 2026.