If they issued an ICO, it is (if fact as alleged) considered fraudulent misrepresentation of material facts.
Re: Does your ICO pass the smell test?
Another smell test are ICOs which make claims which are not objectively provable material facts. They obviously do not care that they are stating claims about the future which they can not be sure of (which is also an illegal activity if the ICO is issued as a security, as is nearly always the case).
99% of ICOs will fail these smell tests, because just as in the Dot.com bubble and bust, 99% of them will be entirely useless other than to FOMOiate a bubble of selling empty bags to greater fools.
Disclaimer: IANAL. This is not legal advice.