The SEC's 'Crypto Mom' Hester Peirce says selling fractionalized NFTs could be illegal

• SEC commissioner Hester Peirce reminded issuers not to accidentally create investment products.
• Selling fractionalized NFTs, or NFT baskets could turn them into securities, which are tightly regulated.
• 'Crypto mom' Peirce also thinks the Howey test is not a good way to see if digital assets are securities.

The Securities and Exchange Commission 'crypto mom' Hester Peirce said issuers of non-fungible tokens must be careful they do not accidentally create investment products when selling fractions, or derivatives, of these digital collectors items.

"People are being very creative in the types of NFTs they're putting out there," Peirce, who is an SEC commissioner and cryptocurrency supporter, said at Draper Goren Holm's Security Token Summit on Thursday.

NFTs are designed to be unique and non-fungible, so they are less likely to be securities, Peirce said. However, considering the creative approaches some issuers have been developing, people should be asking questions and being careful, she said.

When selling fractions of individual NFTs, or NFT baskets, "you better be careful that you're not creating something that's an investment product, that's a security", the so-called "Crypto Mom" said. "The definition of security can be pretty broad," she said.

NFTs, or non-fungible tokens, have soared in popularity recently and are selling for large sums of money. NFTs are data units, often digital content like a tweet, a meme, a piece of art, or music. Twitter founder Jack Dorsey's first ever tweet, for example, sold for $2.9 million as an NFT and digital artist Beeple sold a work for almost $70 million, a record high for digital art.

Peirce said the Howey test, which is used to determine whether or not an asset is a security, does not work well for digital assets, as its basic logic does not apply in the same way as it does to physical assets.

Peirce stated the SEC is considering how, and whether, to refine her proposed safe-harbor policy and a revised plan would likely be presented soon. She said she hopes to collaborate with incoming SEC chairman Gary Gensler on this topic and is engaging with the approaches followed by other countries and regulators to help devise a potential regulatory framework.

Peirce's safe-harbor policy would allow issuers of crypto assets and funds to claim exemption from SEC regulations for three years to protect them from token distribution being classed as securitization immediately. Digital asset investors and creators have shared concerns that SEC regulation would prevent them from being able to set up a broad, decentralized financial system.

"I don't know how it will all play out, and again, I have a lot to learn from what's going on in Europe, also what's happening in Asia, what's happening in the Caribbean. You know, there are a lot of places that are taking much more forward-looking approaches than we and by 'forward-looking', I mean really trying to provide some clarity."