Loot Box Ban Bill Introduced To Senate With Bipartisan Support

loot box ban bill - protecting children from abusive games act

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Loot Box Ban Bill Introduced To Senate With Bipartisan Support

May 24, 2019

By: Robert N. Adams

 
 

United States Senator Josh Hawley's (R-MO) Loot Box Ban Bill (which was announced earlier this month) has been filed in a show of bipartisan support. Senators Ed Markey (D-MA) and Richard Blumenthal (D-CT) have joined Senator Hawley in filing the Protecting Children from Abusive Games Act. The bill, if passed, would make it effectively illegal for any games targeted at gamers under the age of 18 to have any sort of microtransactions or pay-to-win mechanics that affect gameplay.

The Loot Box Ban Bill [PDF] prohibits game publishers and digital game distributors from selling "pay-to-win" microtransactions and loot boxes in "minor-oriented" games. Of course, legal language and the naming of bills can be a bit slippery. That's why it's important to examine the definitions used in the bill. (Bear in mind that I Am Not A Lawyer, and my interpretation is that of a layman with a robust knowledge of the video game industry.)

Loot Box Ban Bill - "Minor-oriented games"

So, what is a "minor-oriented game"? Thankfully, the Protecting Children from Abusive Games Act contains a thorough definition:


(5) MINOR-ORIENTED GAME.—The term ‘‘minor-oriented video game’’ means an interactive digital entertainment product for which the target audience is individuals under the age of 18, as may be demonstrated by—

 
 

(A) the subject matter of the product;

(B) the visual content of the product;

(C) the music or audio content of the product;

(D) the use of animated characters or activities that appeal to individuals under the age of 18;

(E) the age of the characters or models in the product;

(F) the presence in the product of—

 
 

(i) celebrities who are under the age of 18; or

(ii) celebrities who appeal to individuals under the age of 18;

(G) the language used in the product;

(H) the content of materials used to advertise the product and the platforms on which such materials appear;

 

(I) the content of any advertising materials that appear in the product

(J) other reliable empirical evidence relating to—

(i) the composition of the audience of the product; or

(ii) the audience of the product, as intended by the publisher or distributor of the product; or

(K) other evidence demonstrating that the product is targeted at individuals under the age of 18.


Essentially, the above definition allows judges plenty of opportunities to interpret a title as being a "minor-oriented" game.

The clearest indicator of a game's intended audience these days is the ESRB rating. While it isn't explicitly mentioned, that would likely fall under section H: "the content of materials used to advertise the product and the platforms on which such materials appear;".

Junkrat Lootbox

Loot Box Ban Bill - Which microtransactions are banned?

So, we now know which games would be covered by the Protecting Children from Abusive Games Act, but which kinds of microtransactions are covered? Is it a blanket ban, or are only certain things targeted? Let's go back to the bill's text to see what's what. Let's start with what's specifically prohibited.


(a) PROHIBITION OF PAY-TO-WIN MICROTRANSACTIONS AND SALES OF LOOT BOXES IN MINOR-ORIENTED GAMES.—

(1) GAME PUBLISHERS.—It is unlawful for a game publisher to publish—

(A) a minor-oriented game that includes pay-to-win microtransactions or loot boxes; or

(B) an update to an existing minor-oriented game that would enable pay-to-win microtransactions or loot boxes in such game.

(2) DIGITAL GAME DISTRIBUTORS.—It is unlawful for a digital game distributor to distribute—

(A) a minor-oriented game that includes pay-to-win microtransactions or loot boxes; or

(B) an update to an existing minor-oriented game that would enable pay-to-win microtransactions or loot boxes in such game.


We're also going to need definitions of "pay-to-win microtransactions" and "loot boxes". While you and I might know exactly what those are, these terms need to be defined so that they can be interpreted by lawyers and judges. Here are their respective definitions:


(7) PAY-TO-WIN MICROTRANSACTION.—

(A) IN GENERAL.—The term ‘‘pay-to-win microtransaction’’ means an add-on transaction to a interactive digital entertainment product that—

(i) with respect to an interactive digital entertainment product that, from the perspective of a reasonable user of the product, is a game offering a scoring system, a set of goals to achieve, a set of rewards, or a sense of interactive progression through the product’s content including but not limited to narrative progression—

(I) eases a user’s progression through content otherwise available within the game without the purchase of such transaction;

(II) assists a user in accomplishing an achievement within the game that can otherwise be accomplished without the purchase of such transaction;

(III) assists a user in receiving an award associated with the game that is otherwise available in association with the game without the purchase of such transaction; or

(IV) permits a user to continue to access content of the game that had previously been accessible to the user but has been made inaccessible after the expiration of a timer or a number of gameplay attempts; or

(ii) with respect to an interactive digital entertainment product that, from the perspective of a reasonable user of the product, is a game featuring competition with other users, provides a user with a competitive advantage with respect to the game’s competitive aspects over users who do not make such a transaction.

[...]


(8) LOOT BOX.—The term ‘‘loot box’’ means an add-on transaction to an interactive digital entertainment product that—

(A) in a randomized or partially randomized fashion—

(i) unlocks a feature of the product; or

(ii) adds to or enhances the entertainment value of the product; or

(B) allows the user to make 1 or more additional add-on transactions—

(i) that the user could not have made without making the first add-on transaction; and

(ii) the content of which is unknown to the user until after the user has made the first add-on transaction.


As you can see, these definitions in the Protecting Children from Abusive Games Act cover a broad range of video game microtransactions on the market today. These might seem a bit overly-broad at first, but there are some exceptions that mean that not all microtransactions and loot boxes would necessarily be banned by this law.

loot box ban bill protecting children from abusive games act overwatch

Exceptions in the Protecting Children from Abusive Games Act

Although the Protecting Children from Abusive Games Act appears to ban a wide variety of microtransactions (loot boxes included) for games targeted at gamers under the age of 18, there are several exceptions that would put some games in the clear. Let's examine those.


(7) PAY-TO-WIN MICROTRANSACTION.—

[...]

(B) EXCLUSIONS.—

(i) DIFFICULTY MODES.—Such term shall not include an add-on transaction to an interactive digital entertainment product that provides the user with access to a new mode of play that makes progression through the content of the product more difficult than it would be without the transaction (as perceived by a reasonable user).

(ii) COSMETIC ALTERATIONS.— Such term shall not include an add-on transaction to an interactive digital entertainment product whose only effect is to alter a user’s visual representation within the game provided that it does not, from the perspective of a reasonable user, provide the user with a competitive advantage over other users who do not make such transaction.

(iii) ADDITIONAL GAME CONTENT.— Such term shall not include an add-on transaction to an interactive digital entertainment product that adds new content to the product provided that the add-on transaction can be purchased only once by a user and the perceived value offered by such transaction, from the perspective of a reasonable user, is not that it—

(I) eases a user’s progression through content otherwise available within the product without the pur4 chase of such transaction;

(II) assists a user in accomplishing an achievement within the product that can otherwise be accomplished without the purchase of such transaction;

(III) assists a user in receiving an award associated with the product that is otherwise available in association with the product without the purchase of such transaction;

(IV) permits a user to continue to access content of the product that had previously been accessible to the user but is made inaccessible after the expiration of a timer or a number of gameplay attempts; or

(V) provides a competitive advantage over other users with respect to a product’s competitive aspects.


In short, my layman's interpretation (again, I Am Not A Lawyer!) of the Loot Box Ban Bill is this: cosmetic microtransactions would be fine in games for people under the age of 18 with the stipulation that they are not randomized like with a loot box system.

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Bipartisan Support for the Loot Box Ban Bill - And ESA Opposition

A press release from Senator Hawley's office shows that the bill has bipartisan support. While Senator Hawley is a Republican, he's been joined in filing the bill by Democratic Senators Markey and Blumenthal.

"Today’s digital entertainment ecosystem is an online gauntlet for children," Senator Markey said. "Inherently manipulative game features that take advantage of kids and turn play time into pay time should be out of bounds. I’m proud to partner with Senator Hawley and Senator Blumenthal in this important legislation because corporate profits should never come before children’s well-being."

The opposition to this argument has mainly come from the Entertainment Software Association (ESA), the same group behind the Entertainment Software Ratings Board (ESRB). As GamesIndustry.biz reports, they take some issue with this proposed bill.

"This legislation is flawed and riddled with inaccuracies," said ESA CEO Stanley Pierre-Louis said in a statement. "It does not reflect how video games work nor how our industry strives to deliver innovative and compelling entertainment experiences to our audiences."

"The impact of this bill would be far-reaching and ultimately prove harmful to the player experience, not to mention the more than 220,000 Americans employed by the video game industry," he continued. "We encourage the bill's co-sponsors to work with us to raise awareness about the tools and information in place that keep the control of video game play and in-game spending in parents' hands rather than in the government's."

An F.A.Q. [PDF] also exists that covers some of the basics about the bill in simple terms.


Finally, the very end of the bill's text mandates that two studies must be undertaken within 2 years after the bill becomes law. The first would focus on the efforts made by gaming companies to comply with the Loot Box Ban Bill and the second study would examine the effects of pay-to-win microtransactions and loot boxes.

Enforcement of the Protecting Children from Abusive Games Act would be handled by the Federal Trade Commission. Penalties would effectively exceed any profit that a developer or publisher would make from violating this act, providing a strong disincentive for gaming companies to try to get around the Loot Box Ban Bill. It also allows for State Attorneys General to bring civil lawsuits against companies that violate this law.

The Protecting Children from Abusive Games Act is still far from becoming law. The bill needs to be voted on, sent through the usual procedures and committees in the United States Senate and United States House of Representatives, and finally signed by President Trump. If this bill does indeed clear all of these hurdles, we may be seeing legislation that will change the face of gaming monetization forever.

What do you think of the Loot Box Ban Bill as it's written? Do you think the Protecting Children from Abusive Games Act will actually pass and be signed by President Trump? What do you think game developers should do about microtransactions in their games? Let us know in the comments below!

A photograph of Robert N Adams
Senior Writer

I've had a controller in my hand since I was 4 and I haven't stopped gaming since. CCGs, Tabletop Games, Pen & Paper RPGs - I've tried a whole bunch of stuff over the years and I'm always looking to try more!

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