One of the nation’s largest drugstore chains is carrying a topical analgesic intended to be sold only by health care professionals—and the product’s manufacturer is working to have the product removed from the stores’ shelves.

Biofreeze Pain Reliever, manufactured by Performance Health/Hygienic Corporation, is formulated to relieve pain when used in conjunction with professional hands-on health care sessions—and the company’s authorized dealer agreement is formulated to ensure that the product is sold only by health care professionals.

Yet, the CVS/pharmacy drugstore chain has obtained Biofreeze and has the product on display throughout the country. Performance Health learned of this in October 2008.

Performance Health’s Scott A. Matolka, the company’s director of marketing, topicals, told MASSAGE Magazine in March that the product had to have been sold to an authorized dealer and possibly a sub-dealer, who then violated his or her agreement by turning around and selling the product to CVS.

He acknowledged that CVS has done nothing illegal in purchasing and reselling the product—which means Performance Health is limited in taking legal action against the retailer, but is instead negotiating with it.

“We’ve reasoned with CVS and have advised them that we will do whatever we must to limit, if not stop, the flow of Biofreeze product to their shelves,” said Matolka. “Our talks continue, and we hope to have a resolution soon that includes Biofreeze being removed from their shelves.”

Matolka said Performance Health will do all within its power to be more vigilant in enforcing its authorized dealer agreement to prevent CVS and other retailers from selling Biofreeze.

“It isn’t realistic for us to think that we can entirely prohibit such sales in the future without changing our tactics,” he said. “We have communicated with our dealer network to remind them of the commitment they’ve made to us and our practitioner partners that they will only sell product to hands-on health care professionals—an element of the authorized dealer agreement that we intend to enforce.”

That enforcement will be crucial in light of CVS’s desire to feature the product on its shelves. In an open letter sent to massage therapists in February, Performance Health President & CEO Marshall Dahneke noted, “CVS has significant expertise in sourcing ‘diverted’ product through unauthorized distribution and, while we have shut down one clear source, we are confident that they continue to pursue unauthorized Biofreeze access from other sources.”

—Karen Menehan

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