A token sale is not just creating a token and listing it. Before you sell, you need to know what kind of asset the token is, which regulator reads your offer and what documents it must come with. The rules in the EU and the US moved a lot in 2025–2026. In the EU, MiCA requires a white paper for most public offers. In the US the SEC (US Securities and Exchange Commission) proposed exemptions in August 2026, but the proposal is not final.
Checked on 21 October 2026. Rules and sources are current as of this date.
What has changed in 2025–2026
In the EU, MiCA now regulates public offers of crypto-assets: the offeror must be a legal person that prepares, notifies and publishes a white paper, and, together with the members of its management body, is liable for its content (Art. 15 MiCA). Offers to fewer than 150 persons per member state, up to EUR 1 million in 12 months or to qualified investors only need no white paper, but the legal person requirement, the marketing rules and the offeror duties still apply (Art. 4(2)). Free distributions, rewards for maintaining the network, utility tokens for an existing good or service and tokens for a limited network of merchants are outside these rules altogether (Art. 4(3)). All exemptions fall away if the offeror announces an intention to seek admission to trading (Art. 4(4)).
In the US, on 17 March 2026 the SEC, with the CFTC (US Commodity Futures Trading Commission), issued interpretive guidance sorting crypto assets into digital commodities, collectibles, tools and stablecoins, which are not securities, and digital securities, which are. On 18 August 2026 it proposed Regulation Crypto Assets with offering exemptions. It is still a proposal and may change.
EU and US compared
Public offer procedure under MiCA
The white paper is notified to the competent authority of the home member state at least 20 working days before publication (Art. 8(5)). It must come with an explanation of why the token is not an asset-referenced token, an e-money token or a crypto-asset excluded from MiCA, such as a financial instrument (Art. 8(4)). Authorities do not pre-approve white papers or marketing communications (Art. 8(3)), so responsibility for their content rests with the offeror.
Marketing communications must be clearly identifiable as such, fair, clear and not misleading, consistent with the white paper, include the offeror’s website and contact details and carry the mandatory statement that the communication has not been reviewed or approved by any competent authority and that the offeror is solely responsible for its content (Art. 7(1)).
Where an offer has a time limit, funds and crypto-assets raised are held by a credit institution or a CASP providing custody, and the result of the offer is published on the website within 20 working days of the end of the subscription period (Art. 10). If an offer is cancelled, funds are returned to buyers no later than 25 calendar days after cancellation (Art. 14(3)).
A retail buyer can withdraw within 14 calendar days without giving reasons and without costs, and is refunded within 14 days of withdrawing. The right does not apply if the token was admitted to trading before the purchase (Art. 13).
The offeror and the members of its management body are liable to holders for white paper information that is incomplete, unfair, unclear or misleading, and any contractual exclusion or limitation of that liability has no legal effect (Art. 15). For a utility token for a good or service that does not yet exist, the offer may not run longer than 12 months from publication of the white paper (Art. 4(6)).
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The SEC’s proposed Regulation Crypto Assets
The SEC proposed the rules on 18 August 2026, the text appeared in the Federal Register on 21 August, and comments were due by 20 October 2026. Final rules have not been adopted.
Two exemptions from Securities Act registration are proposed. The startup exemption allows a one-time raise of up to $5 million over four years; the issuer can be a company, an individual or a group, and the exemption cannot be reused for the same or a substantially similar token. The fundraising exemption is modelled on Regulation A and has two tiers, up to $20 million in 12 months (Tier 1) and up to $75 million (Tier 2). Tier 2 financial statements must be audited, and ongoing reporting applies after the offering.
Under both exemptions the issuer provides principles-based disclosure and remains subject to the antifraud and antimanipulation provisions. A separate safe harbor is proposed under which, if its conditions are met, a crypto asset is deemed not to be subject to an investment contract, and state registration requirements for these offerings would be preempted.
What to prepare for a token sale
Token classification
Decide whether the token is a utility token, a security, a crypto-asset under MiCA or a digital commodity in the US. Everything else depends on this.
Entity and jurisdiction
Choose where the issuer sits. The EU needs a legal person; a US exemption may need a US entity. Plan holding or foundation structure early.
White paper and terms
Describe the project, team, technology, rights of holders and risks accurately. In the EU the offeror and its management body are liable for the content. Add token sale terms, privacy policy and community rules.
KYC, AML and sanctions
Screen buyers and wallets, restrict prohibited countries and document the source of funds for larger buyers.
Tax and accounting
Work out the tax treatment of proceeds for the issuer and for buyers before the sale, not after.
Marketing and listings
Avoid promises of returns, follow local advertising rules and prepare documents for exchanges, which usually ask for a legal opinion.
A misleading white paper or promises of profit create liability for the team, not only for the platform that hosts the sale.
Order of work
Classify the token
Get a legal opinion on its status in the markets you target.
Start herePick the jurisdiction and structure
Match issuer, holding and investor base to the exemption you rely on.
Prepare the documents
White paper, token sale terms, investor documents such as SAFT (Simple Agreement for Future Tokens) or token warrant, privacy policy.
Build KYC and AML
Provider, rules for prohibited countries, procedures for large buyers.
ImportantCheck marketing and listing requirements
Review the announcement texts and the exchange package before publication.
Frequently asked questions
How long before the launch must the white paper be filed?
At least 20 working days before publication, with the home member state authority, together with an explanation of why the token is not an asset-referenced token, an e-money token or a financial instrument. The authority does not pre-approve it.
Do we need a legal opinion before a token sale?
In most cases yes. The status of the token decides which rules apply, whether a white paper or an exemption is needed and where the token can be sold. Exchanges and investors usually ask for it too.
Does MiCA apply to a utility token?
A white paper is not required for offers of utility tokens that give access to an existing good or service, but this exemption is narrow. A token for a product that does not exist yet is usually outside it.
Can we sell tokens to US buyers?
Only after checking US securities law. The SEC’s 2026 proposal would create exemptions, but it is not final, so most projects either exclude US buyers or rely on an existing exemption with counsel.
Is the SEC’s Regulation Crypto Assets already in force?
No. It was proposed on 18 August 2026, the comment period closed on 20 October 2026, and it may change before adoption.
See also: SAFT vs. Token Warrant: Choosing the Right Instrument for a Seed-Stage Crypto Raise; What is Know Your Customer (KYC) and why is it essential for cryptocurrency exchanges?; SAFT vs SAFE: What Is the Difference and Which Should a Crypto Project Choose; DeFi and DAOs: Who Is Liable for a Decentralized Project; Regulation Crypto Assets: How the SEC Proposes to Regulate Token Sales in the US. Services: legal services for crypto projects.
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