Yup, and making the game pay to win (as opposed to offering only cosmetic items for sale) means the whales are going to come out in full force. It really is gambling and I think it should be treated as such.
Technically, to be gambling the company would need to give out prizes with monetary value.
I agree that it's perhaps an oversight that dopamine release is not considered a prize under the existing 3-part test for gambling - chance, prizes, risk of loss.
Yeah I think it's really murky too. The interpretation of 'monetary value' is not 100% clear. For example, Japan has a very different stance on these sort of mechanisms.
The only reason the ESRB (admittedly not a regulatory body) does not consider loot crates gambling is because there is no chance of getting nothing from a loot box. Of course, you are almost guaranteed to get items which, in practice, have no value to you.
Let's also not ignore the fact that the micro-transaction model exploits the same exact psychological responses used by gambling houses to get you to spend more money. Combine that with the fact that these games are rated teen and I think you have a problem, regardless of whether or not you call it 'gambling'.
I thought one of the ways they get around being regulated as gambling is that you technically can not lose and get nothing. You will always "win" at least something, even if the item is worthless to you.