In December of 2022 California released an interagency progress report (“Report”) analyzing the current regulatory status of Web3, Crypto Assets, and Blockchain. The report was prepared pursuant to Executive Order N-9-22 (the “Order”) issued by California Governor Gavin Newsome on May 4, 2022, which declared California’s intent to regulate blockchain, including crypto assets and related financial technologies, and directed California state agencies, including the Governor’s Office of Business and Economic Development (“GO-Biz”), the Government Operations Agency, the Business, Consumer Service and Housing Agency, and the Department of Financial Protection and Innovation (“DFPI”) to collect feedback from various stakeholders to understand the risks and explore opportunities for the state. The Order, among other directives, advises these California agencies, led by DFPI, in consultation with GO-Biz, to create a regulatory framework for crypto assets in coordination with federal and state authorities, with the goals of ensuring equity, regulatory clarity, consumer protection, innovation, and job growth. Although these new technologies present some novel questions, for entities engaging in lending backed by digital assets, the DFPI has made clear that the California Financing Law and similar regulatory burdens apply.
Current Registration Requirements
The Report follows earlier requests for public comment, including from the DFPI, which published a request for public comment (the “Request”) stating an intent to develop a comprehensive state regulatory framework for the offering of digital asset related financial products and services in California. Within the previous request for comment, the DFPI states that it possesses the authority to develop comprehensive regulations under the California Consumer Financial Protection Law (CCFPL), which authorizes the DFPI to “prescribe rules regarding registration requirements applicable to a covered person engaged in the business of offering or providing a consumer financial product or service.” Accordingly, the DFPI has put forth that it currently has the authority to require licensing and regulation of crypto asset-related financial products. In the Order issued by Governor Newsom “crypto assets” is defined as “a digital asset, which may be a medium of exchange, for which generation or ownership records are supported through a blockchain technology.” Given this backdrop, we can expect the DFPI to issue regulations without further legislative input.
Responses to the request for comment and other opportunities to provide public input resulted in several key suggestions for regulation, including the following:
- Provide regulatory clarity—including by basing regulations on specific types of activities, products, and services (rather than specific entities).
- Harmonize with federal guidelines—including by modeling key terms and requirements on those used by federal regulators.
- Avoid over-regulation—including by minimizing compliance costs.
CCFPL Regulation and Supervision
The Report states that DFPI has issued licenses to 10 crypto asset related companies that engage in lending activities under California financial licensing laws. Some make consumer loans that are secured by crypto assets, while others make commercial loans to crypto asset-related companies. In addition to licensing and other compliance activity, the Report further notes that enforcement actions were also underway. The highlighted enforcement actions within the report related to companies allegedly operating crypto deposit accounts that qualified as unregistered securities as well as investment schemes. The Report did not highlight any enforcement actions related to loans secured by crypto assets or other licensing violations.
However, on November 18, 2022 and November 22, 2022, the DFPI suspended California Financing Law licenses for two entities in connection with their crypto asset platforms. In both instances, the entities paused activity on their platforms. The investigation of one entity remains ongoing while the other entered into an agreement to pause collection of repayments and interest on loans belonging to California residents while its CFL License is suspended or as further agreed to between the DFPI and the entity.
While many aspects of Web3, Crypto Assets, and Blockchain regulation remain unclear, it is clear that those engaging in lending activities collateralized or otherwise related to such assets are regulated under the CCFPL and other California law, and must abide by the same strictures as any other lender.