Blind Boxes: Opening Our Eyes to the Challenging Regulation of Gambling-Like Products and Gamblification and Unexplained Regulatory Inaction

Blind boxes are novel, gambling-like physical products that consumers can buy to obtain randomized content. In January 2022, non-binding, advisory compliance guidelines recommending certain best practices when marketing blind boxes for sale were published in Shanghai, China. The relevant provisions, which include consumer protection and harm minimization measures such as setting age limits; publishing probability disclosures; and implementing “pity mechanics” that guarantee that the consumer will receive the rarer content that they desire after making a predetermined number of purchases, are translated and commented upon. Blind boxes and other gambling-like products are identified to also be available for sale in other countries, including in the West, where they may legally constitute “gambling” under existing laws but remain unregulated and available for purchase by children. The similarities and differences between blind boxes and video game loot boxes are highlighted to show that a stronger case exists (in law) to regulate physical gambling-like products than video game loot boxes generally: secondary markets demonstrably exist for the randomized physical blind box content, which as a result possesses real-world monetary value, whilst, in contrast, most virtual video game loot box content cannot be transferred to other players and therefore cannot be exchanged for real-world money. The emerging popularity of gambling-like products and the increasing “gamblification” of the provision of products and services generally causes issues that require gambling law reform to address: enforcing existing gambling law that did not contemplate such widespread gamblification indiscriminately to regulate everything may be overregulation and may overburden gambling regulators. However, gambling regulators that have made, and continue to maintain, a conscious executive decision not to enforce the law against obvious contraventions are failing to address potential consumer harms and arguably acting ultra vires: regulators must therefore publicly justify their decision, so that “gambling-like products” may be properly scrutinized.