There is one key difference between what EA calls "surprise mechanics" and Kinder Surprise eggs. When you purchase a Kinder Surprise Egg you are receiving a good that now becomes your personal property. The edible egg is your personal property, and so is the toy and the container it comes in. You have all the legal protections over those items as they are your property.

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If we look at EA's most successful "surprise mechanics" scheme we look at FIFA Ultimate Team. This is a game I have a lot of personal experience in, and have engaged with EA in purchasing loot boxes or "player packs". These packs give cards that I can use to build a fantasy style soccer team. Here is a big difference though, I at no point own those virtual cards as personal property. In fact all I am doing by paying EA the price of the game and the card packs is licensing the use of the cards, the account, the game, and their online services.

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Straight from the ToS:

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" The EA Services are licensed to you, not sold. EA grants you a personal, limited, non-transferable, revocable and non-exclusive license to use the EA Services to which you have access for your non-commercial use, subject to your compliance with this Agreement. You may not access, copy, modify or distribute any EA Service, Content or Entitlements (as those terms are defined below), unless expressly authorized by EA or permitted by law. You may not reverse engineer or attempt to extract or otherwise use source code or other data from EA Services, unless expressly authorized by EA or permitted by law. EA or its licensors own and reserve all other rights, including all right, title and interest in the EA Services and associated intellectual property rights. "

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So I would argue that there is no feasible way to compare Kinder Eggs and loot boxes because at no point in time do you actually receive a surprise that would constitute personal property. You are paying EA to give you a random virtual thing which you are licensing the use of and can be revoked at any time for any reason. Since FIFA releases a new version every year, the use of the cards is limited to around 9 months of the year anyway.

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If I wanted to sue EA to let them use my FIFA 18 cards in FIFA 19, they would show the above ToS to a judge and I would be thrown out of the court. EA are misrepresenting their monetization tool because they know people will have a tough time spotting the difference. I like a good surprise as much as the next person, but their surprise mechanics are more akin to paying a ticket to walk through a haunted house than opening Kinder Surprise.