Highlights:
- Digital Chamber urges Congress to exempt NFTs from securities laws.
- TDC argues NFTs should be seen as consumer goods, not investments.
- SEC’s recent NFT actions raise concerns about new regulatory practices.
On Tuesday, the crypto and blockchain advocacy organization The Digital Chamber (TDC) urged the United States Congress to pass legislation that would define certain non-fungible tokens (NFTs) as consumer products and exempt them from federal securities laws. The move comes in response to increasing concerns about the Securities and Exchange Commission’s (SEC) recent enforcement actions, including issuing a Wells notice to NFT marketplace OpenSea.
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Digital Chamber Asserts NFTs Aren’t Securities
The TDC stated that NFTs designed for consumptive use, such as digital art, collectibles, and video game assets. The group maintains that these tokens should be viewed similarly to traditional consumer goods. The Digital Chamber stressed that people typically buy NFTs for personal enjoyment, not as investments, and occasional resales for profit do not inherently make them securities.
The @SECGov’s overreach is putting the livelihoods of NFT creators and communities at risk. NFTs are primarily consumer goods—not securities. We need Congress to take action now and protect innovation, creators, and consumer rights. https://t.co/dp1fb2R3cf
— The Digital Chamber (@DigitalChamber) September 10, 2024
TDC urged policymakers to explicitly define in U.S. law that NFTs are neither “financial products” nor classified as securities under the SEC’s jurisdiction. The group argued that SEC Chair Gary Gensler and the commission were adopting a regulation-by-enforcement strategy toward NFTs, which, along with Congress’s lack of clear guidance, is “putting the industry at risk.”
Digital Chamber said:
“Many NFT applications are clearly not designed as investment contracts or financial tools for speculation, even if consumers occasionally sell NFTs for a profit, much like traditional collectibles or artwork. These items should be classified as consumer goods, not securities.”
SEC’s NFT Crackdown Sparks Concerns and Legal Challenges
Last month, the SEC issued a Wells Notice to OpenSea, suggesting that certain NFTs on the platform could be classified as securities under U.S. law.
OpenSea has received a Wells notice from the SEC threatening to sue us because they believe NFTs on our platform are securities.
We're shocked the SEC would make such a sweeping move against creators and artists. But we're ready to stand up and fight.
Cryptocurrencies have long…
— Devin Finzer (dfinzer.eth) (@dfinzer) August 28, 2024
Historically, the SEC’s focus has been on cryptocurrency exchanges like Coinbase and Uniswap, as well as platforms such as Kraken and Robinhood. However, by now turning its attention to NFTs, the SEC is entering new regulatory territory. The SEC’s recent enforcement action against OpenSea has heightened concerns.
TDC commented:
“SEC Chair Gary Gensler’s regulation-by-enforcement approach has jeopardized the livelihoods of countless individuals who rely on NFTs to pursue their passions and sustain their businesses.”
Meanwhile, DraftKings shut down its NFT operations recently in response to a class action lawsuit claiming their NFTs were unregistered securities. The federal judge’s decision to let the case proceed indicated a credible argument that DraftKings’ NFTs might be classified as securities. Similarly, Dapper Labs, known for NBA Top Shot, faced a lawsuit with similar allegations, highlighting the ongoing legal challenges in the NFT sector.
Depending on the outcome of the U.S. election, the SEC’s leadership and regulatory approach could change starting in January 2025. Republican candidate Donald Trump has pledged to remove Gensler “on day one” if reelected, while some industry leaders believe Democratic nominee Kamala Harris might adopt a different regulatory stance compared to the Biden administration.
The group cautioned that the current lack of legislative clarity is driving NFT creators and companies abroad, where regulations might be more favorable. TDC urged Congress to clarify that NFTs used for consumptive purposes should not be subject to SEC authority.
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