Scammy ICO promises? It's a security.
The number of promises the Ethereum foundation and developers have made with regard to expected ROI? Pretty much zero in centralized fashion. Not a security.
If I sell potatoes on the street promising MOON RETURNS 50% a month, i'm selling securities.
But it's not:
> simply labeling a digital asset a “utility token” does not turn the asset into something that is not a security.
Your point only works in one direction: of course if something is marketed promising returns then it is a security. The lack of such marketing does not imply anything in either direction.
That said, I do believe that Ether is a utility token.
Edit: OK, you completely rewrote your comment and we now agree.