McHenry and Thompson attempt to sidestep the Howey Test entirely. Their bill would create a new asset class called “digital assets.” Digital assets can come in many forms, but two particularly important ones are “digital commodities” and “restricted digital assets.” In short, the legislation provides that crypto tokens will either be issued as digital commodities in the first instance, or as restricted digital assets that then “mature” into digital commodities after they become sufficiently decentralized.
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