SEC Regulation Crypto Assets: A Token Issuer’s Guide

For a company preparing a token launch, regulatory planning reaches far beyond choosing where to incorporate. It affects the fundraising structure, the rights offered to purchasers, the promises made in marketing, and the evidence supporting the product’s development.

Two recent SEC publications bring these decisions into sharper focus: its proposed Regulation Crypto Assets and the Division of Corporation Finance’s crypto FAQs.

Together, they provide a useful starting point for founders considering US capital formation. In this article, we examine the legal structure, commercial narrative, and technical operating model as one connected project to help you plan raising capital in the US.

Understand the status before planning the launch

The SEC proposed Regulation Crypto Assets on August 18, 2026. The comment period closed on October 20, 2026. The rules have not been adopted, so you cannot use the proposed exemptions for a transaction today.

The Division of Corporation Finance's crypto FAQs, updated September 28, express staff views. They have no legal force and do not amend existing law. They explain aspects of the Commission's March interpretation and reference a Commission interpretation expressed within the August proposing release.

What this means for you: distinguish preparation for a possible future regime from the legal basis available for your transaction today. A sensible planning exercise models both: how you could raise capital under applicable existing arrangements, and what changes would be needed if the proposed framework is adopted.

Which token sales does Regulation Crypto Assets cover?

The proposal concerns "covered investment contracts": arrangements involving a crypto asset that is not itself a security, with no other asset subject to the contract. It is not a general exemption for every token offering or tokenized security. (For tokenized securities, see our overview of RWA tokenization.)

For founders, this means your assessment should describe what purchasers receive and what they are being asked to rely on.

Consider a hypothetical company selling tokens to finance an application that has not yet launched. Its presentation describes development milestones and explains how the team's execution could benefit token holders. A review should examine that arrangement as a whole: the token's rights, the funding purpose, the product's current capabilities and the issuer's commitments. Calling the asset a utility token leaves those questions unanswered.

At Hacken Advisory, this is where we start when aligning token documentation, the operating model and jurisdiction-specific legal input. If your token's economics are part of the offering story, a tokenomics audit tests them before purchasers rely on them.

How much can you raise under each exemption?

The proposal includes two offering exemptions, with different scales and requirements (see the SEC fact sheet):

• Startup exemption. A one-time exemption for up to $5 million over a period of up to four years. The issuer makes public filings at the start and end of that period and gives investors narrative disclosures.
• Fundraising exemption. A two-tier exemption: up to $20 million (Tier 1) or $75 million (Tier 2) in each 12-month period. The issuer files offering materials with narrative disclosures and financial statements (audited for Tier 2), takes on ongoing reporting, and needs SEC qualification before sales.

These would be exemptions from registration, with antifraud and antimanipulation provisions continuing to apply.

The commercial question is which route could support your funding needs and administrative capacity. A smaller raise may help finance a defined development stage. A larger offering requires you to budget for financial preparation, reporting and internal coordination alongside product delivery. Our recommendation is to compare the expected capital benefit with the full cost of maintaining the chosen route.

Who can use the fundraising exemption?

Under the proposed fundraising exemption, the issuer must be US-organized, have a majority of US-citizen or resident executive officers or directors, hold more than half its assets in the US and administer its business principally there. SEC qualification would be required before sales. The startup exemption has no equivalent US test.

For an international group, these conditions deserve early attention. An offshore issuer, a US development subsidiary and a distributed team may serve legitimate business purposes. But you should evaluate whether that arrangement matches your intended fundraising strategy.

Creating a US entity is one decision. Assigning it appropriate functions, assets, people and authority is a broader implementation task.

This is where corporate and tax structuring should be considered together. Before moving intellectual property, treasury assets or contractual responsibilities, assess the consequences in each relevant jurisdiction. Hacken Advisory covers corporate, tax and licensing questions alongside security. If you also plan to serve EU users, see our MiCA guide.

What do the SEC staff FAQs mean for token marketing?

The FAQs distinguish promotion of current utility from profit-linked commitments. They also distinguish general classification definitions from the issuer's own promised functionality milestones. Once the product works, routine upkeep such as bug fixes, maintenance and minor updates is treated differently from the build-out buyers relied on. So mark in your roadmap which work is upkeep and which is a new promise. Buybacks and new contracts get more favorable treatment only under conditions, including that no central party runs them. If your team decides when and how much to buy back, don’t describe buybacks as support for the token price.

For a business development team, the practical implication is to review the entire communication chain. Your whitepaper may describe one product, while an investor deck promises another. A founder interview may imply that a buyback will support returns, although your treasury policy describes a different objective.

Our recommended exercise is a communications inventory covering your website, fundraising materials, official social channels and statements by authorized representatives.

For each material claim, record:

• What the company has communicated.
• Whether it describes a current capability or a future commitment.
• Who is responsible for delivery.
• What evidence supports the statement.

This gives legal, commercial and engineering teams a common basis for reviewing the offering. Founders new to this kind of review can start with our Web3 security guide for founders.

When does a token stop being an investment contract? The safe harbor

The proposed investment-contract safe harbor would require completion or permanent cessation of all promised essential managerial efforts, no new or intended promises of such efforts, and a public transition filing with supporting analysis.

A launch announcement alone would be a weak foundation for your assessment. Our recommendation is to preserve a development record: promised milestones, delivered functionality, remaining dependencies and the authority your team retains. Legal analysis can then be tested against the actual system, for example with a smart contract audit that documents admin keys and upgrade rights.

The FAQs also say that transferring promised efforts to another party does not create separation from the investment contract. That makes restructuring a substantive review point. A successor arrangement should be assessed through the obligations it assumes, alongside the change in corporate ownership.

How are receipts and staking products treated?

The FAQs describe receipts as preserving ownership of deposited assets without giving the issuer rights to lend, pledge or otherwise use them. Whether a staking receipt is treated this way depends on conditions, so check each one against your design. If your company also runs a platform where the token trades, check whether you count as a “promoter” under Securities Act Rule 405. A promoter is someone who takes the initiative in founding or organizing the issuer’s business, and the role brings its own disclosure duties and liability. Running the venue and building the project can put a team in that position.

For businesses using these models, our recommendation is to compare contractual rights with custody arrangements and technical permissions.

The review should establish what the holder owns, who controls the underlying assets and what actions are possible in practice. A product label should be supported by that assessment.

How to prepare: a readiness review in four workstreams

The proposed disclosure topics include use of proceeds, management, conflicts, security, token allocations, governance and risks. State-registration preemption would be conditional, rather than a removal of all state obligations. Token allocation disclosures are easier to defend when the design follows recognized tokenomics design principles.

For management, the implementation task is to make the company's account of itself consistent and verifiable. Our recommended readiness review connects four workstreams:

• Corporate: entity roles, asset ownership, contracts and decision authority.
• Commercial: offering terms, intended purchasers, fundraising materials and public commitments.
• Financial: proceeds, treasury flows, related-party arrangements and reporting capacity.
• Technical: deployed functionality, permissions, dependencies and evidence supporting security claims.

Gaps between these workstreams should become named tasks with responsible owners.

How Hacken Advisory helps

Hacken Advisory's published scope includes token and equity structuring, corporate entities and foundations, cross-border tax flows, operating models and documentation. Advisory work is coordinated with Hacken's security teams, with local counsel integrated where required. For regulatory evidence beyond the US, see Hacken's compliance services.

For a token company considering US fundraising, we can help organize a readiness assessment around your actual business:

• Map entity roles, ownership and funding flows.
• Identify questions requiring US securities counsel and tax specialists.
• Align offering documentation with commercial commitments.
• Coordinate technical evidence supporting product and security descriptions.
• Establish responsibilities for maintaining that information as the project evolves.

The opportunity is to prepare a business that can explain its structure, substantiate its claims and evaluate the available fundraising routes with confidence.

FAQ

Can I use the Regulation Crypto Assets exemptions now? No. The SEC proposed them on August 18, 2026, and the comment period closed on October 20, 2026. They are not available until the Commission adopts final rules.

How much can a token issuer raise under the proposal? Up to $5 million over up to four years under the one-time startup exemption, or up to $20 million (Tier 1) or $75 million (Tier 2) every 12 months under the fundraising exemption.

Can a non-US company use the fundraising exemption? Not as proposed. The issuer must be organized in the US, have a majority of US-citizen or resident executive officers or directors, hold more than half its assets in the US and be administered principally there. The startup exemption has no such requirement.

Is a utility token automatically outside these rules? No. The label does not decide the question. What matters is what purchasers receive and whether they rely on the team's promised efforts.

Are the SEC staff crypto FAQs binding? No. They are staff views with no legal force, though they show how the Division of Corporation Finance reads the Commission's interpretations.