To determine if an offering is a security in the United States, the Howey test is applied.
In the below Order, a Judge has determined that an ICO did not meet the requirements of the Howey test (even though the SEC believes it did).
First off, the guidance issued from the SEC regarding ICOs is most certainly lacking. However, very rarely if ever do folks challenge the SECs position regarding the Howey test. To my knowledge, this is the first challenge to the SEC for an ICO where a Judge agreed with the sponsor of the ICO.