Brazil CVM Guidance Opinion 40 on Crypto Assets and Securities Markets

The guidance defines its subject around crypto assets represented digitally, protected by cryptography, and capable of being transacted and stored through distributed-ledger technologies. It states that crypto assets are usually represented by tokens. CVM’s central purpose is to consolidate its understanding of rules applicable to crypto assets that are securities and to explain the limits of CVM authority over capital-market participants.

The opinion does not regulate technology as such. CVM states that digital, cryptographic, or distributed-ledger form is not decisive for determining whether an asset is a security or whether an activity falls under CVM rules. Tokenization by itself is not subject to prior CVM approval or registration. If tokens are securities distributed publicly, however, the issuer and public offering are subject to securities regulation, and organized-market administration, intermediation, bookkeeping, custody, central depository, registration, clearing and settlement services involving securities must follow the rules that apply to those activities.

CVM adopts an initial functional taxonomy: payment tokens, utility tokens, and asset-referenced tokens. The categories are not exclusive, and a single token may perform more than one function. Asset-referenced tokens may include security tokens, stablecoins, NFTs and other tokenized assets; CVM states that whether such a token is a security depends on the economic substance of the rights granted and on the function the token assumes in the project.

The opinion directs market participants to analyze each crypto asset’s features. A token may be a security when it digitally represents a security listed in Article 2 of Law No. 6,385/1976 or a receivables certificate under Law No. 14,430/2022, or when it fits the open-ended concept of a collective investment contract. CVM also states that collective investment contracts remain securities even when they provide exposure to crypto assets that are not themselves securities, and that derivatives are securities regardless of whether the underlying asset is a crypto asset.

• Investment of money or another economically measurable asset;
• A title or contract formalizing the relationship between investor and offeror;
• Collective character of the investment;
• Expectation of economic benefit;
• Benefit resulting mainly from the efforts of an entrepreneur or third party; and
• Public offering or fundraising from popular savings.

CVM places its initial approach in line with broad and adequate disclosure. The guidance emphasizes information on token-holder rights, the issuer and offering participants, third-party efforts that may affect economic benefit, governance and consensus mechanisms, technology risks, investor support, fees, custody or private-key arrangements, trading venues, personal-data treatment, and AML/CFT-related controls.

For online and cross-border activity, the opinion builds on earlier CVM guidance on internet offerings and foreign securities. It notes that use of communications aimed at the Brazilian public, Portuguese-language offering or support, and the absence of effective measures to block Brazilian residents may be relevant to whether an offering or intermediation activity is directed to Brazil.

Intermediaries active in secondary-market offers of crypto assets must consider CVM regulation when securities are involved. The guidance also addresses due diligence on commercial partners, risk disclosure where crypto exposure is offered directly rather than through a regulated fund or ETF, and fund-level disclosure for innovative assets, including crypto indexes and NFT-related exposures.

Brazil later adopted Law No. 14,478/2022 and Decree No. 11,563/2023 for virtual-asset services. CVM clarified in 2023 that the decree assigned virtual-asset-service regulation to the Banco Central do Brasil but did not alter CVM’s authority over securities, including securities represented digitally as tokens. That makes Guidance Opinion 40 a continuing reference point for CVM’s crypto-securities perimeter.

This profile is for legal-reference and editorial research purposes only. It does not provide legal, tax, investment or compliance advice.