SEC’s new crypto FAQ is a reference, not a shield, says Renato Mariotti

The SEC has published a fresh set of answers to crypto’s most common legal questions. According to former federal prosecutor Renato Mariotti, nobody should mistake those answers for armor.

Mariotti says the new FAQ is non-binding guidance. In his view, market participants should use it as a reference point, not as protection if regulators come knocking later.

What the SEC actually published

On September 25, 2026, the SEC’s Division of Corporation Finance released updated Frequently Asked Questions. The document explains how federal securities laws apply to a range of crypto assets and transactions.

Three days later, on September 28, 2026, the FAQ was updated again. For a document meant to bring clarity, that’s a quick rewrite.

The guidance tackles several issues the industry has wrestled with for years. Among them are staking receipt tokens, buyback programs run by decentralized networks, and how marketing communications factor into the Howey test.

Notably, the FAQ does not name any specific crypto assets or protocols. It speaks in general terms, leaving companies to figure out how the principles map onto their own products.

Why the fine print matters

The most important detail sits in the legal status of the document. The FAQ reflects the views of SEC staff only, and it has no legal force or effect.

It also has not been officially approved by the Commission itself. Put simply, this is the agency’s employees explaining how they currently read the rules, not the agency formally setting those rules.

That distinction is exactly what Mariotti is flagging. He emphasized that the guidance is interpretive and not final, pointing to how quickly some answers were revised after the initial release.

The FAQ didn’t appear out of nowhere. It builds on an Interpretive Release the SEC published on March 17, 2026, and follows an August 18, 2026, proposed rulemaking on crypto assets.

That core question is the one crypto has argued about for years: which tokens are securities and which aren’t. The SEC has struggled to draw that line clearly using Howey’s criteria.

Congress hasn’t filled the gap either. Legislative efforts such as the Clarity Act have stalled, leaving agency guidance as the main signal the industry has to work with.

What this means for crypto builders and investors

For companies, the practical takeaway is that compliance decisions still rest on context. With no binding rule in place, firms will be making calls about disclosures and token design based on how their specific facts line up with general staff commentary.

What to watch next is whether the August 18 proposed rulemaking advances toward a final rule. A finalized rule would carry legal weight that a staff FAQ cannot.

Watch, too, for further revisions to the FAQ itself. The September 28 update shows staff are willing to adjust answers quickly, and any additional changes would reinforce Mariotti’s point that this guidance is still a moving target.

The fate of the Clarity Act remains the larger wildcard. Until Congress or the full Commission puts something binding on paper, the industry is navigating with a reference manual that its own authors say isn’t the law.