Depends on what, you ask? For one, Methenitis says games sold at GameStop as new where, "the disc, packaging, or other materials are damaged in any way, or if one-time use download codes are used" could be "a deceptive act." The problem with minutiae such as this, he says, is that damages are so small (monetarily speaking) that a lawsuit would be ineffective in court. Furthermore, he says that laws put in place to protect consumers from used vs. new item fraud are often based on products that degrade rather than "nebulous" products like DVD discs and, to a greater extent, cartridge-based games (such as Nintendo DS titles).
With legal ambiguities surrounding this issue, we'd simply suggest buying used titles from your friendly, online click-and-order retailer in the meantime, rather than contributing to billions of dollars in used game sales at your own and other gamers' expense.