The frame.
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 of five categories. For a marketing team it is a map of intended lanes — and of the language that keeps a token out of 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.
The category names the lane you intend; the marketing is the evidence of whether you stayed in it. Same thesis as the companion note on the Howey managerial-effort prong.
The five buckets, and the language each one lives or dies by.
“Say this” anchors to present, verifiable utility; “not that” reintroduces the Howey profit-expectation and efforts-of-others prongs. 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.”
A return from simply holding is the textbook Howey profit prong. Citation: SEC/CFTC interpretation (Mar 2026).
“Our team will run buy-backs and burns to support the token’s value.”
Points the value expectation at the issuer’s essential efforts, whatever bucket the token claims. Citation: “essential” managerial-efforts standard.
“The next [well-known token] — don’t miss the upside.”
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 label does not save the copy — the mismatch is itself evidence. Citation: transaction-focused analysis, SEC/CFTC (Mar 2026).
How to market within your bucket.
Decide the intended category with US securities counsel before the copy is written. Counsel makes the call; marketing keeps it honest.
Describe what the token does today — 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.
Remove “earn,” APY-as-income, “passive income,” price targets, “Nx,” and past-token comparisons across every bucket.
If you call it a tool, the page should read like a product, not a prospectus. Align headline, body, and fine print to the same lane.
A clean landing page does not help if influencers post “100x” threads. Put the same say-this-not-that language into KOL contracts.
Related rules.
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The companion note: the Howey prongs and the exact copy that builds a profit expectation.
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The US securities-law angle on crypto marketing.
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The EU mirror: return promises and unbalanced claims fail there 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.