Lawmakers Seek Clarification From SEC on How It Addresses Crypto Airdrops

House Committee on Financial Services chairman Patrick McHenry and the Majority Whip Tom Emmer have requested SEC Chairman Gary Gensler to clarify how the agency regards airdrops.

Republican lawmakers have requested more information from the Securities and Exchange Commission (SEC) on how it classifies crypto airdrops.

In a letter to SEC Chairman Gary Gensler, House Committee on Financial Services Chairman Patrick McHenry and Majority Whip Tom Emmer asked for clarification on how the agency regards airdrops.

They expressed concerns that the SEC's current approach could lead to the misapplication of securities laws to these distributions, making it difficult for developers.

"We are concerned about the SEC's approach to airdrops, which entails the free distribution of tokens in blockchain systems," McHenry and Emmer wrote.

"These distributions, which are intended to incentivize participation and usage of blockchain networks, could be subject to the SEC's expansive definition of a 'security.'"

The lawmakers argued that classifying airdrops as securities would hinder the development and advancement of blockchain technology in the U.S.

"Moreover, we are concerned that classifying airdrops as securities has largely prevented U.S. developers from allowing Americans to participate in airdrops, depriving U.S. citizens of the benefits of decentralized blockchain systems," they added.

"To this end, we request that the SEC provide clarity on whether or not airdrops are to be presumed to be securities."

The letter also raised questions about how the SEC would distinguish airdrops from other reward programs, such as airline miles and credit card points.

"Both airdrops and these other reward programs are intended to incentivize participation in a network or service, and both are distributed without requiring the recipient to contribute any funds," McHenry and Emmer wrote.

"We fail to see a logical basis for subjecting airdrops to a different regulatory regime if both serve the same purpose and function."

The lawmakers highlighted past SEC enforcement actions, including the case against Justin Sun of Tron, where the agency categorized airdrops as securities.

"In the case of Tron, the SEC categorized TRX and BTT airdrops as securities even though they were distributed to all holders of SUN tokens, which were previously deemed by the SEC to be commodities," McHenry and Emmer wrote.

"This shifting approach to token classification has created significant uncertainty in the market and made it difficult for developers to navigate the regulatory landscape."

They requested that the SEC provide a clear and concise explanation of how an airdrop would be considered an investment under the Howey Test, arguing that the current legal situation deters blockchain developers from operating in the U.S.

"We believe that a clear and objective standard for determining whether an airdrop constitutes an investment under the Howey Test is essential for providing legal certainty and fostering the development of blockchain technology in the United States," McHenry and Emmer wrote.

"Without such a standard, blockchain developers will continue to be hesitant to operate in the U.S., fearing potential SEC enforcement actions that could retroactively change the legal status of their activities."

The lawmakers also asked for an analysis of the broader market effects of regulating airdrops as securities.

"We are concerned about the broader market effects of regulating airdrops as securities, and we request that the SEC provide an analysis of the potential economic impacts, such as reduced tax revenues, slower pace of technological advancement, and decreased efficiency in capital formation," McHenry and Emmer wrote.

"We believe that the SEC should take into account these broader economic considerations when making regulatory decisions that could have a significant impact on the U.S. economy and technological leadership."

The letter comes ahead of a series of hearings in the House Financial Services Committee dedicated to examining the SEC's policy on digital assets.

These hearings are expected to assess the impact of the SEC's regulatory actions on blockchain and cryptocurrency markets, and to consider proposals for legislative changes.

McHenry and Emmer, both strong proponents of crypto regulation, have frequently criticized Gensler's leadership on the issue, arguing that the SEC's approach has created uncertainty in the marketplace.

Under the proposed bill, both the SEC and the Commodity Futures Trading Commission will share the responsibilities of the regulations. They believe it will result in a better and more fair balance of rules by the regulatory authorities.

The upcoming hearing on September 24 by the SEC on the oversight of various firms will indeed be crucial. The Republican run Congress is also planning to interrogate all five SEC commissioners.

McHenry and Emmer want clear answers by September 30 to help make sure the U.S. stays competitive in blockchain technology.

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