From this interesting article, where the ESRB states that loot boxes are not gambling since you always get something. In fact, they go on to compare it to collectible cards, where you may get a double, or a card you didn’t need.
The key argument here is the chance of loss in order for something to be considered gambling. I can’t really think of any traditional gambling game where you leave with even a portion of your investment. There’s no way to bet $20 on roulette and leave with something other than $0 or more than $20. (This is not the argument around investments…)
Loss itself is an interesting thing to define. I think most would associate loss to the concept of value. You go into something with X value and leave with less than X. Most times it relates to money, but there are certainly gambles that are not (like jumping out of an airplane and hoping the parachute opens).
The main issue I have is that it’s near impossible to provide a value metric against virtual goods. It’s not a regulated market (it is a market), so an item in one game may be worth something different in another (like a name change).
It would be easy to argue that loot boxes provide no contextual value to a person, but not objectively. If you already have that mount, then it has no value. If you don’t, then it does. If you’re in full epic gear, then more gear is useless. So what loot boxes effectively do, is provide a floor value for virtual items.
This doesn’t dismiss the view point where the loot box is a way to reward a company for their efforts. In that point, you’re actually always winning something, as the reward is the service you’re being provided.
Given that the both the objective value (the hat) and contextual value (the mount) typically have no value to me, I don’t use loot boxes. In the case of F2P games, then my way to reward the dev is through anything but a loot box, first – like with Path of Exile or cosmetics in another game. If there are no options, odds are it’s not a game I want to be playing (most mobile games).
All to say that I agree with the ESRB in their definition, as all loot boxes I’ve ever seen have something in them. All those things have value to someone, so you’re getting something out of it. People just need to assess what that value actually means to them.