Patricia Vance at first sounded a little confused by the pushback. Another reporter on the call Tuesday pointed out to Vance, the president of the Entertainment Software Rating Board, just how expansive the board’s new labeling of in-game purchases really was. Practically anything you see touted at E3 2017, The Game Awards, PlayStation Experience, it’s all carrying some kind of in-app purchase.

Vance suggested that there are post-release expansions that are not offered for sale from within a game. I know I scratched my head trying to think of one; it sounded like the others on the line were, too. I tried to repeat the question in a different way, pointing out that a current game — South Park: The Fractured But Whole — has chapter extensions and a season pass, literally available from within the game (a bus stop serves as the marketplace for that). None of that was objectionable before loot crates hit the scene last fall. And there are no loot crates in the South Park game.

Vance stuck to the message. A season pass and DLC offered from within the game gets the in-game purchases label, and the ESRB encourages all parents to set spending controls using tools on the platforms available.

“The new In-Game Purchases label will be applied to games with in-game offers to purchase digital goods or premiums with real world currency,” the ESRB said in a statement, “including but not limited to bonus levels, skins, surprise items (such as item packs, loot boxes, mystery awards), music, virtual coins and other forms of in-game currency, subscriptions, season passes and upgrades (eg. to disable ads).”

To me, it has the effect of obscuring, or normalizing (there’s a trendy word) the phenomenon of loot crates. If they’re just another in-game purchase, and gamers have tolerated them for years, what’s the BFD about this one, right? I’m not the only one who feels this way.

A ‘Missed Opportunity’ to educate consumers

”I think that’s absolutely the case,” said Rep. Chris Lee of Oahu, Hawaii, the state legislator behind a series of bills being considered by Hawaii’s assembly. They had hearings two weeks ago and the state’s House of Representatives and Senate are now considering each other’s proposals for a full vote in their chambers. “Nearly every major title has some form of in-game purchase. This label hides whether those purchases are a large downloadable piece of content or an endless loot box mechanic. So people have no idea, no way to find out until after they have purchased the game.”

Lee is right. Go through our Top 10 Games of 2017. All but one (Everything) contain some kind of in-game purchase that conforms to this new labeling standard. No one is accusing Nier: Automata, Persona 5 or The Legend of Zelda: Breath of the Wild of the kind of obnoxious behavior seen in Star Wars: Battlefront 2, or what caused Call of Duty: WWII to alter its rollout of real-money purchases.

In sports, my area of expertise, the last game I could find that had no in-game transactions was Rory McIlroy PGA Tour, which launched in mid-2015. The Golf Club 2, an unlicensed challenger, has some benign premium DLC to boost a player’s career. NBA Playgrounds, which I didn’t care for but which was at least praised for having, at launch, an old-school progression of unlocking the roster, has some extra characters for sale. Sure, EA Sports Ultimate Team has been around for nine years across now five titles, but MLB The Show, Pro Evolution Soccer and, especially, NBA 2K all have variants. And the “training points” for MLB The Show’s Road to the Show career mode, which I’ve likened to virtual PEDs, predate all of that.

Lee overreached a bit, in my view, when he invoked FIFA 18 as a game “built around loot box gambling, that continues to be rated for all ages, with zero meaningful disclosure that they contain in-game gambling.” Ultimate Team is contained to a single mode of play within its parent game, many don’t prefer it, and you can easily get $60 worth of play out of all the other modes offered in the rest of the game.

But I do respect Lee’s consistency of message, that there’s at least a class of microtransactions that deserve more attention. I still think he and his colleagues face a steep challenge, because it can still be argued they’re seeking to regulate content, and video game publishers won big against that effort in 2011 when the Supreme Court threw out a California law and found video games to be protected works of free expression.

For its part, the ESRB seems unwilling to call out loot boxes as any kind of special or distinctive transaction. It was pointed out to Vance that the ESRB has content descriptors for gambling (and “simulated gambling”). Not that I expected the ESRB — a creation of the Entertainment Software Association — to regulate them as such. The ESA has been clear since the Battlefront 2 controversy broke that it does not consider loot boxes to be gambling, as Lee and other regulators and lawmakers allege.

”I’m sure you’re all asking why we did not do something more specific to loot boxes,” Vance said. And, yeah, we were. She pointed to focus-group research that suggested parents weren’t familiar with the concept, and even those who were, weren’t actually informed about what a loot crate involves.

A more specific warning is needed

To my mind, that would suggest the necessity of a warning more specific than the ESRB is offering, rather than a blanket label that equates story extension DLC with a spin at the wheel for virtual items. The ESRB’s thrust is clear: Drive the focus toward parental controls that are available on consoles and other systems, which we’ve called a problem already solved. This isn’t surprising, and this approach was suggested to me by others within the industry a couple of weeks ago after the Hawaii legislation was introduced.

A public service campaign calling attention to the parental support a console provides — and has provided for years — is fine. What’s bothering everyone is this is an industry trend, and the only way that can effectively be regulated is if no one’s buying it. Good luck with that, especially on something as popular as The Lord of the Rings, Star Wars or Call of Duty.

The ESRB may not be in a position where it can tell publishers what they can and can’t do — its purpose is to describe, not regulate. But it’s supposed to provide meaningful advisories to video game consumers, and this in-game purchases label really isn’t one. The reminder to use sub-accounts and set spending controls — and the fact such controls are available — is useful.

But the ESRB’s muddled approach seems to be preserving the option of loot crate systems in video games in hopes the popular opposition to them dies off soon.

”It’s a missed opportunity and perhaps even a step backward for the ESRB and the ESA,” Lee said. “They could have taken meaningful and proactive steps, but this seems to be doubling down on loot boxes and simulated gambling mechanics.”