This is how the video game industry wants you to see loot boxes

The Entertainment Software Rating Board has written a response to Sen. Maggie Hassan’s (D-N.H.) request that it look into loot crates and other forms of in-game purchases. The letter provides an interesting look at how the industry itself views loot boxes — or at least the talking points it will use to defend them.

“Loot boxes initially gained popularity in mobile games in the early 2000’s, mostly outside of the United States,” says ESRB president Patricia Vance in the letter, which the ESRB provided to Polygon. “They are relatively new to console and computer games. I think it is important to clarify that these purchases are always optional, are often awarded at no cost to the player, can be acquired using virtual currency that can be earned through gameplay and/or purchased, and are never required to complete the game.”

These are all facts, but they’re meant to paint loot boxes in the best possible light. Loot boxes are big business in video games right now, and the ESRB was created in the mid-1990s by what is now the Entertainment Software Association, the trade body that lobbies on behalf of the video game industry. It makes sense that these statements would go out of their way to defend gaming’s current golden goose.

Vance also brings up the issue of gambling.

“The ESRB has previously stated publicly that we do not consider loot boxes to be gambling for various reasons, nor am I aware of any legal authority in the United States that has classified loot boxes as gambling,” the letter continues. “In fact, the UK Gambling Commission recently determined that loot boxes do not constitute gambling.”

This is a fascinating argument, because it doesn’t state that loot boxes aren’t gambling. It says that the ESRB does not consider them to be gambling, and that the legal system is in the same position right now. There is a small challenge you can read between the lines here, as if the ESRB is saying, you can call it gambling, but you’re going to have to prove that in court.

The rest of the argument likens loot boxes to another product that feels a little out of date: baseball cards.

“We believe that loot boxes are more comparable to baseball cards, where there is an element of surprise and you always get something,” the letter explains. “Loot boxes are an optional feature in certain games that provide the player a fun way to acquire virtual items for use within the game itself. Most of the time, these items are cosmetic in nature. They are sometimes earned as an award to the player; other times they can be purchased. But at all times, they are optional. Additionally, there is no way to cash out in the game; the player can only use the item to customize game play experience.”

Notice how often this argument tries to separate loot boxes from what could be considered gambling in the legal sense. The ESRB stresses that you always get something for your money, the items are mostly cosmetic, are always optional and can’t be sold for real money. See? It’s not gambling; it’s just fun stuff you can buy or earn in a game. That’s the industry’s argument, at least.

There are, of course, ways to cash out using third-party services if you find a rare item, but those methods aren’t officially supported in games or gaming services themselves. The industry enjoys its plausible deniability.

Players will likely find ways to argue with this framing — I think it’s slightly disingenuous myself — but the important part is that we now know how the business of gaming itself wants people to see these purchases. You can read Vance’s full letter to Sen. Hassan below.