The rule.
Under Howey, an “investment contract” is an investment of money in a common enterprise with a reasonable expectation of profit derived from the efforts of others. The 17 March 2026 SEC/CFTC joint interpretation applies this framework to crypto — and makes marketing a first-class part of the inquiry.
Whether an issuer offers an asset as part of an investment contract turns on representations or promises — conveyed to purchasers — that the issuer will undertake the essential managerial efforts from which a purchaser would reasonably expect to derive profits.
Whether the issuer fulfils those representations depends on how it “defines or otherwise describes such efforts in marketing and promoting” the arrangement. The analysis is transaction-focused: marketing, commitments, and ongoing managerial efforts — not the token’s form or label — are central.
The interpretation locates the security question in what you tell buyers to expect. The code is the same either way; the marketing moves the token across the line. Marketing is not downstream of compliance — it is the compliance surface.
What it requires.
Marketing copy is the most direct evidence on two Howey prongs: the expectation of profit and the efforts of others.
The profit-expectation prong. Messaging that trains buyers to expect a financial return — price appreciation, yield, “get in early,” past-token comparisons — builds the expectation of profit. Utility framing (“use this to do X”) does not; return framing (“hold this to earn Y”) does.
The efforts-of-others prong. The relevant efforts must be essential — “the undeniably significant ones which affect the failure or success of the enterprise.” Promising the founding team will keep building, promoting, burning supply, securing listings, and driving value points the profit expectation at others’ essential efforts.
The lifecycle point. Once the issuer has fulfilled its representations, the investment contract can cease to exist — later sales of the now-functional asset need not be securities transactions. Marketing that keeps re-promising future managerial effort keeps the framing alive instead of letting it retire.
Marketing language that creates a profit expectation.
“Early holders of $TOKEN are positioned for significant upside as the team scales the protocol.”
Ties an expected financial return directly to the team’s future work. Both Howey prongs in one sentence. Citation: SEC/CFTC interpretation (Mar 2026); SEC v. Howey.
“Our roadmap: we will list on tier-1 exchanges, burn 20% of supply, and run buy-backs to support the price.”
Frames the roadmap as the issuer’s essential efforts to drive holder profit. A roadmap can be operational; this one is a profit engine. Citation: “essential” managerial-efforts standard.
“Stake $TOKEN and earn up to 18% APY — let your assets work while you sleep.”
Passive return from others’ efforts is the textbook profit expectation. Also a misleading-marketing risk in MiCA/FCA. Citation: profit-expectation prong; cross-ref Article 88.
“The next [well-known token] — don’t miss the 100x.”
Speculative-profit expectation plus implied managerial effort. Citation: reasonable-expectation-of-profit prong.
How to comply.
Lead with what the product does today. If a claim only makes sense to someone hoping the price goes up, it belongs to the profit-expectation prong.
Remove price targets, “Nx,” “upside,” “passive income,” APY-as-earnings, and past-token comparisons from public marketing.
“We are shipping feature X” is operational; “we will burn supply and run buy-backs to support the price” promises essential managerial effort aimed at holder profit.
The analysis looks at the deal as marketed, across every channel. A clean landing page does not help if influencers post “100x” threads. Bind KOL contracts to the same language rules.
Decide the security posture with US securities counsel before the copy is written. Marketing cannot fix a security-by-design token, but careless marketing can make a non-security one look like one.
Related rules.
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The EU mirror: return promises and unbalanced claims fail the “clear, fair, and not misleading” bar too.
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If you market to the EU as well, the licensing deadline is the parallel exposure.
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The UK perimeter for the same promotion.
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MiCA, FCA, GDPR, SEC — the marketing rules, quoted and explained.
This page is an operator-grade heuristic for marketing teams, not legal advice and not a determination of any token’s status. Token classification under US law is highly fact-specific; the quoted passages are plain-English renderings of the March 2026 SEC/CFTC interpretation and the Howey framework. For a binding view, retain qualified US securities counsel before you launch or list.