I find it a bit weird BNB isn't considered to be somewhere in security territory. It was launched with an ICO and its value hangs on the success of one corporation. I suppose it's not ownership of Binance as such but it's one hell of a long way from something like BTC.
Binance is playing with fire with that one. They burn BNB based on profits made -- lowering the circulating supply -- so it seems like there is indeed an expectation of profits. These are the four metrics of the Howey Test. BNB seems to fit every one:
- It is an investment of money
- There is an expectation of profits from the investment
- The investment of money is in a common enterprise
- Any profit comes from the efforts of a promoter or third party
Arguably, they issued unregistered securities to US persons. I also don't think that's the only area where they have legal exposure to the SEC.