"Digital commodity" – what the SEC wrote on 3 September, and what it did not

If you read the headlines this morning, you saw: "the SEC called XRP a digital commodity." That is a two-sentence story in which the first sentence is true and the second – that something has been "settled" – does not follow from it. Let us go through the document.

Securities and Exchange Commission, Release No. 34-106268; File No. SR-NasdaqTX-2026-039, dated 3 September 2026. Not a judgment, not a regulation, not a statute: it is the accelerated approval of a rule-change request filed on 20 August 2026 by a self-regulatory organisation – the Nasdaq Texas, LLC exchange. The amendment concerns the exchange's Rule 5711(d), which sets the listing standards for Commodity-Based Trust Shares.

By the order's own summary it does three things: (1) allows a buffer of up to 15% of a fund's net asset value in assets that do not meet the generic listing standards; (2) adds a definition of "digital commodity"; (3) allows actively managed strategies.

Per the order, "digital commodity" will mean a commodity that is a digital asset and is "intrinsically linked to and derives its value from the programmatic operation of a functional crypto system, as well as supply and demand dynamics, rather than from the expectations of profits from the essential managerial efforts of others."

Anyone who knows the Ripple case sees the mirror image of the Howey test in that sentence: the central question of the case was precisely whether a buyer of XRP expected profits "from the managerial efforts of others". Our chapter on the 2023 ruling – the anatomy of the judgment – unpacks exactly that sentence. The exchange definition now draws the same line – from the other side.

Not in the definition. XRP appears in the order in an example that illustrates how the 15% buffer works. Verbatim: a Commodity-Based Trust Share "holds $95 million in market value of Bitcoin, Ether, Solana, and XRP, which all presently qualify as eligible commodities under Rule 5711(d)(iv)(A)(2) and (3)" – that is, each is a commodity that underlies a futures contract traded on an ISG market for at least six months and has an ETF.

That sentence is today's news. In a regulatory document, in an example sentence, the SEC describes the four assets – XRP among them – as eligible commodities under its own exchange-listing criteria. That is a fact. What is not a fact: that this amounts to any judicial or statutory classification.

The order amends the rulebook of one exchange. The definition goes into a new subparagraph (D) of Nasdaq Texas Rule 5711(d)(iii) and determines what may go into a fund listed there. It does not amend the Securities Act, it does not bind the courts, and – as the order itself notes – it is materially identical to the rule of The Nasdaq Stock Market approved in July. So it is not a new decision but the extension of an existing rule to an affiliated exchange.

The real content of today's news is therefore two sentences: in its own document, the SEC treats a set of crypto assets – XRP among them – as commodities for exchange-listing purposes; and that treatment lives in a rulebook, not in a statute. Whether it becomes law is a matter for another process, which this document does not touch.

One arc of RIPPLE – An Unofficial Documentary Study is how the same question – what is XRP? – migrates from document to document: two legal memos in 2012, a 71-page complaint in 2020, a 34-page ruling in 2023, and now an exchange rule amendment. Each is a different genre with a different weight. The purpose of the book is precisely not to confuse those weights.

The full timeline, 1988 to 2026, source by source: RIPPLE – An Unofficial Documentary Study, 22 chapters, in English, Hungarian and Spanish. The 80 and the 20 – where the story begins – in a separate article.

It does not claim that the legal status of XRP has been "settled" – an exchange rule is neither a statute nor a judgment. It does not claim that the SEC made an "announcement": the document is the approval of a self-regulatory organisation's request, in which XRP appears in an example sentence. It claims nothing about the Senate vote reported for 15 September – this document does not mention it, and we do not forecast. And it claims nothing about the price of XRP, nor what effect a regulatory document "should" have on it.

Educational content, not investment advice. Independent publication, not affiliated with Ripple Labs Inc.

Source: U.S. Securities and Exchange Commission, Release No. 34-106268, File No. SR-NasdaqTX-2026-039, "Notice of Filing, and Order Granting Accelerated Approval of, a Proposed Rule Change to Amend Rule 5711(d) (Commodity-Based Trust Shares)", 3 September 2026 – Sections I and II, the "digital commodity" definition (5711(d)(iii)(D)) and Example 1 of the 15% buffer; sec.gov/files/rules/sro/nasdaqtx/2026/34-106268.pdf.