The frame.
US law still has no crypto-specific marketing rulebook the way MiCA and the FCA regime do. What changed in 2026 is structure: the SEC’s Draft Strategic Plan for FY2026–2030 named digital assets its top-line priority, and in March 2026 the SEC and CFTC published a joint working taxonomy that sorts tokens into five categories. For a marketing team, the taxonomy is a map of intended lanes — and a checklist of the language that keeps a token in its lane instead of drifting toward the one bucket you do not want by accident: the digital security.
Digital assets are grouped into working categories — broadly, digital commodities, collectibles, tools, stablecoins, and digital securities — as an analytical starting point rather than a set of fixed legal labels.
Whether a given token is offered as part of an investment contract remains a transaction-focused question under Howey, turning on the representations conveyed to purchasers about the essential managerial efforts from which they would expect to profit.
Read those two sentences together and the operating rule falls out: the category names the lane you intend; the marketing is the evidence of whether you stayed in it. That is the same thesis as our companion note on the Howey managerial-effort prong — marketing is not downstream of the security question, it is the surface on which the question is decided.
The five buckets, and the language each one lives or dies by.
Each row below pairs the marketing framing that keeps a token in its intended non-security lane with the framing that pulls it toward the digital-security bucket. “Say this” anchors to present, verifiable utility; “not that” reintroduces the profit-expectation and efforts-of-others prongs of Howey. Citations: SEC/CFTC taxonomy (Mar 2026); SEC v. Howey; SEC/CFTC joint interpretation (Mar 2026).
| Bucket | What it is (working definition) | Say this (utility-anchored) | Not that (security-leaning) |
|---|---|---|---|
| Digital commodity | A functional, sufficiently decentralised network asset — e.g. a base-layer coin whose value is not dependent on a single promoter’s efforts. | “Used to pay for transactions and secure the network.” “An open, decentralised protocol maintained by its community.” | “Our team will drive adoption and price.” “Get in before the next leg up.” — reintroduces reliance on others’ efforts. |
| Collectible | An NFT or similar acquired for use, art, membership, or access — not as a financial position. | “Grants access to the event / the membership / the artwork.” “A collectible you own and use.” | “Floor price only goes up.” “Flip for a profit.” “We’ll pump the collection.” — turns art into an investment pitch. |
| Tool | A utility or governance token consumed inside a live product — fees, access, voting. | “Spend it on fees.” “Vote on protocol parameters.” “Unlocks the feature today.” | “Stake and earn passive income.” “Hold as we grow the treasury.” — frames the token as a yield-bearing position. |
| Stablecoin | A token designed to hold a stable value against a reference asset, used for payment or settlement. | “A stable unit for payments and settlement.” “Designed to hold its reference value.” | “Earn yield just by holding.” “Your money works while you sleep.” — a return promise reintroduces the profit prong. |
| Digital security | A token offered and sold as an investment contract — sold on the expectation of profit from others’ efforts. | If this is genuinely your bucket: market it as a security, with the required disclosures and counsel — do not disguise it as utility. | Do not reach for “utility token” cosmetics to dress a security. The mismatch is itself a finding. |
// The bucket is the intended lane; the marketing is the evidence of whether you stayed in it. No row is legal advice.
The patterns that move a token toward “digital security.”
“Hold $TOKEN and earn — your balance grows automatically.”
Reintroduces a profit expectation into a tool or stablecoin pitch. A return from simply holding is the textbook Howey profit prong. Citation: SEC/CFTC interpretation (Mar 2026); profit-expectation prong.
“Our team will run buy-backs and burns to support the token’s value.”
Points the value expectation at the issuer’s essential efforts — the efforts-of-others prong — regardless of which bucket the token claims. Citation: “essential” managerial-efforts standard.
“The next [well-known token] — don’t miss the upside.”
Invites buyers to expect speculative profit and implies the team will deliver a comparable run. Turns a commodity or collectible into an investment pitch. Citation: reasonable-expectation-of-profit prong.
A page headed “utility token” whose body sells price appreciation and team-driven growth.
The taxonomy is transaction-focused; a mismatch between the claimed bucket and the actual pitch is itself evidence. The label does not save the copy. Citation: transaction-focused analysis, SEC/CFTC (Mar 2026).
How to market within your bucket.
Decide the intended category before the copy is written, with US securities counsel, and let that decision set the language guardrails. The taxonomy is an analytical starting point, not a determination — counsel makes the call; marketing keeps it honest.
Describe what the token does today inside a live product — pay fees, vote, access a feature, settle a payment. If a claim only makes sense to someone hoping the price rises, it belongs to the digital-security bucket you were trying to avoid.
Remove “earn,” APY-as-income, “passive income,” price targets, “Nx,” and past-token comparisons from public marketing across every bucket. These are the phrases that reintroduce the profit-expectation prong.
If you call it a tool, the page should read like a product, not a prospectus. A mismatch between the claimed bucket and the marketing is a finding on its own — align the headline, the body, and the fine print to the same lane.
The analysis looks at the deal as marketed, across every channel. A clean landing page does not help if influencers are posting “100x” threads. Put the same say-this-not-that language into KOL contracts and review the whole surface.
Related rules.
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The companion note: the Howey managerial-effort and profit-expectation prongs, and the exact copy that builds a profit expectation.
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The US securities-law angle on crypto marketing — the whole cluster, for marketers, not lawyers.
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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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MiCA, FCA, GDPR, SEC — the marketing rules, quoted and explained.
This page is operator-grade information for marketing teams, not legal advice and not a determination of any token’s status. The five categories are plain-English renderings of the March 2026 SEC/CFTC working taxonomy and the SEC Draft Strategic Plan FY2026–2030; token classification under US law is highly fact-specific and transaction-focused. Nothing here is an accusation about any named issuer or token. For a binding view, retain qualified US securities counsel before you launch or list.